Many thanks for your response,
UntreedReads. I just wanted to come back on some of the points.
UntreedReads:
Keep in mind, in these cases the author does NOT currently have a contract with their agent for the ELECTRONIC rights. That's what's being negotiated here. We also don't pay advances, so your example above is not necessarily apples/apples.
I find it very surprising that an agent would not be taking representation rights for electronic copies of a book. Most agent agreements that I've seen (including my own) make it clear that the agent is taking on the work in all formats.
However if an agent (for whatever reason) has decided that s/he doesn't want to negotiate electronic rights along with print rights, then they shouldn't be getting any percentage from an author's sale of the electronic rights that the author has made for themselves.
If an agent is negotiating with you for electronic rights, then the agent's cut comes out of whatever gets paid out to the author and that is dealy with in the agent's contract with the author.
There therefore should not be any need for you to set out how the agent's percentage is determined.
UntreedReads:
There is a separate contract that we have for the Agent/Author/Publisher relationship that is not the same as the one you see on the site. As the terms change from agent to agent, that contract tends to be malleable and negotiable. We recently completed a negotiation for an author who is taking advantage of this opportunity to get his works into electronic format where his publisher doesn't offer them. Rest assured, legal folks looked at all of the contracts including all parties involved. No contract was signed until everyone agreed to the terms.
I'm sorry but I am utterly confused by this.
An agent who does not have any contract in place with an author to represent their work should not be getting any form of remuneration from that author.
If Untreed Press is paying a referral fee to agents who pass authors on to it, then that remuneration agreement should be between Untreed Press and the agent. The author simply does not need to be party to it.
In any event, any agent who is accepting a referral fee for manuscripts that they are passing on is in breach of AAR rules and I for one would be very wary of approaching any agent who had such a relationship with you - especially if that relationship has not been previously disclosed - because it represents a conflict of interest.
UntreedReads:
Rest assured, the agents we are currently working with are all professionals, and the authors involved have had no issues whatsoever.
Are you prepared to state which agencies you are working with on this basis?
I'm very surprised to hear that authors have no issues with this arrangement because they're basically giving an agent money when they've done nothing except pass their manuscript to you. The agent isn't doing anything for that money and the author could keep more by approaching you direct.
At best, in my opinion, it is unethical on the part of the agent. At worst, it is open to abuse of the worst order as they could be tempted to pass on any manuscripts to you in exchange for the cash, regardless of whether it's good for the author concerned.
UntreedReads:
120 days is for submitted proposals. If, based on the proposal, we choose to accept the work than the author needs to deliver a final work to us within 120 days. For accepted manuscripts that require editing that has been discussed, then the final work should be delivered within 60 days, with up to 120 days available for unusual circumstances.
Fair enough. Given that your contract is being reviewed anyway, it might be worth while clarifying this because I'm a UK commercial contracts lawyer and I was a bit confused about it.
UntreedReads:
Clause 4b is the assumption that we have signed them to a series. In fact, we specifically state in #12 that we'd like to have a first look at it, but it's not required. 4b is about the delivery of the titles in the series that we've signed them to.
Fair enough. Again, it's probably something to be clarified in the redraft.
UntreedReads:
This was taken directly from a previous print contract, which we have scheduled to be removed in the revision.
Fair enough.
UntreedReads:
Edition refers to format. If the title is no longer being offered in any ebook format, then the title is rendered "out-of-print."
I'll have to defer to one of the other posters with more experience of electronic publishing. However my concern here is that, at least, it needs to be made subject to the set term period of the contract anyway, and an author would presumably want a tight definition as to what is meant by offering in ebook format because theoretically, it could result in a perpetual contract even though this is not what's intended.
UntreedReads:
The effect wasn't to create a 3 year term. It's one of the errors that we recently spotted and currently have our lawyers rewriting for us. It's actually two years from the date the contract is executed by both parties. Keep in mind that the one on the site says "Sample Contract," not "This Is The Contract You'll Receive."
Fair enough. I'd expect it to be from the date of execution anyway.
UntreedReads:
We'll go ahead and add some clarifying language. I guess it never occurred to me to be unethical about it, which is why it's not spelled out. Not to mention that if there's something missing in a contract that an author wants to see, then we negotiate putting it in the contract before it's signed. Part of the point of working with people to reach a common goal.
Fair enough and I'm sure that Untreed isn't planning to be unethical about it. The reason for mentioning it though is that there have been reports on other threads here recently where authors who are seeking to get out of contracts with electronic publishers who are not doing much for their books (which I'd stress is not what I'm suggesting would happen with Untreed) have been effectively held to ransom via clauses like this.
I can see the point in having a clause like this from a publisher's point of view because it gives certainty on costs recovery. From an author's point of view though I wouldn't be too thrilled about it and would at least want to know how much it's likely to cost me in advance if I decide I want out for whatever reason.
UntreedReads:
The 10% advance is ONLY should the author do away with their electronic version. If they get a print contract, terrific! We're not asking for anything for that. We've done quite a bit of research into this, and the 10% is actually significantly lower than what many other electronic publishers were asking.
Again, I'm going to have to defer to some of the other posters who have experience in electronic publishing.
However my take on this (and for what it's worth) is that were I faced with a clause like that I would want it struck out - regardless of whether it's what other electronic publishers are doing. The reason is this: Untreed Publishing is not taking print rights over the book. It therefore has no say or right over what I would do with the print rights of the book. Nor is Untreed Publishing approaching, negotiating or representing me in any negotiation with a print publisher for my book. For Untreed Publishing to therefore claim a percentage of any advance that I have negotiated by myself and through my own efforts simply isn't going to fly.
UntreedReads:
K.D. Sullivan has multiple contracts through McGraw-Hill as an author, and has also co-authored another title in the Pocket Idiot's Guide series. In fact, much of the first two incarnations of our contract were taken word-for-word from K.D.'s contract with McGraw-Hill.
Yes, but the point is that K. D. Sullivan's only experience is as an author. There is no apparent experience there as a publisher, i.e. in the sense of managing or working for a publishing company.
I do not doubt K. D. Sullivan's writing experience in the slightest. My issue is whether that experience qualifies her to operate as a publisher, which is a completely different kettle of fish.
UntreedReads:
The agent contract template we use (not available on the site) was worked on with three literary agents, including K.D.'s who has been in the business for almost 30 years.
Apologies but I'm a bit confused about this. What does your agent contract do and how is it different to the sample contract on the site? Surely you only need a standard form contract which sets out your relationship with the author?
Again - thank you for responding to the questions here.
MM
The rejection some could say would be helpful, but I had to disagree. I know it's all a matter of tastes, but everything he told me was wrong with my MS is what the other pub said was its strong suits. So go figure lol