Relieving Paperwork Pain: Tips for T&C Negotiation

When Ad Ops Goes Legal - Navigating T&Cs

To my knowledge no one goes into ad operations to practice law. It was certainly the last thing on my mind when I started back in 1999, but I quickly found myself having to navigate T&Cs, IOs and the occasional client-signed PowerPoint slide printout. As if that wasn’t tough enough, I felt like I was the only person who understood what was being said – or not being said – in the contracts and what was actually happening. 

Ad operations’ “security” role often extends beyond code and creative and into contracts, making sure the “paperwork” is in order so revenue can be collected and the company has legal protection in its agreements. Just like creative and code, ad operations gets squeezed from all sides with multiple parties who simply want the deal to be pushed through (clients and sales) and at the same time make sure everything is in order (management, legal and financial departments). 

The contract work exacerbates the tough position for ad operations when company policies are not aligned with the deals being signed, which in turn are not aligned with what’s actually happening in the campaign. Does speed trump protection? This seems to be an ongoing question for ad ops.

In particular, our industry’s ever-evolving usage of data is outstripping the standard terms and conditions. Version 3.0 of the IAB standard terms were published in late 2009 and much has changed in digital advertising since then. Getting together all parties to craft a new version is not something I envy and I support those that will eventually take that on. In the meantime, business is still being done and in some ways exceptions to the standards are now the norm:  the exact opposite of what anyone in operations wants. 

A quick survey of digital media strategists across the ecosystem revealed very different opinions about how best to address this issue which substantiates that exceptions are now the rule. However, operations is operations and while opinions differed, several things came out as ways to mitigate the paperwork pain.

One thing that all agreed upon, however, was the need to monitor what the other side was doing as it related to cookies and data. Understanding what other parties are doing is the first step to having a data policy that can be enforced with the proper paperwork. All three are needed to to have a proper data strategy.

Pre-Deal Vendor Certification

Part of the problem with managing terms is they become visible late in the lifecycle of the deal. By then, both parties already want the deal to happen (and usually sooner than later) and no one wants legal sticking points to get in the way. It’s often this push that leads to acceptance of less than optimal terms. Unfortunately, trying to get ahead of contractual issues may seem like an even less attractive option – who wants to work out a contract that may never happen? 

There is however an area where being proactive can address legal, technical and policy issues upfrontdeveloping an evaluation and certification process for solution providers. One publisher I spoke with said that their concern is less with the agency and more with the vendors that agency uses. They felt that agencies were acting in good faith, but the terms for a campaign don’t offer enough protection from the partners of the agency. 

With the veritable cornucopia of technology companies out there, reviewing all the potential options is going to be an issue even for the big companies like Google, Yahoo and Microsoft who all have vendor certification processes. The trick isn’t to solve for all, but solve for the common ones and a review of existing clients and the vendors they work with should create a short list. It also helps to work with partners that give visibility into what other partners are doing. Manually checking campaigns once isn’t sufficient to understanding everything that is going on, but an ongoing monitoring process or solution is needed.

The certification process is an opportunity to bring clarity to your company’s data policies and whether you will have the authority to enforce them or not. I recommend setting a policy that no one can set a cookie for a company that hasn’t gone through the evaluation process and certified. Make it clear that lack of enforcement will put the company at risk and one can’t have a data policy without knowing what people are doing with data they collect on your side. 

Agency Way or the Highway?

At the RFP stage, both the buyer and the seller have an opportunity to be transparent and head off surprises down the road. A RFP that outlines what third party solutions will be used along with performance metrics will help publishers fast-track an evaluation process. Publisher salespeople should also be trained to ask the right questions upfront: What 3rd party solutions will be used? What methods of data collection will be employed? When will cookies expire?

In the discussion around terms, the buy side often has the majority of bargaining power. A few agency people I talked with are quite upfront about a “take it or leave it” attitude with contract negotiation. It’s the publisher’s prerogative to dispute this: if terms are non-negotiable, that should be stated upfront along with the terms themselves. If a publisher decides it’s not worth pursuing because of particular deal points, a lot of time can be saved for all parties. My assumption is that playing “chicken” with buyers and hoping that they’ll cave because a deal is too close to happening is a tactic that hasn’t been successful for several years.

Angelina Eng, VP/Director, Digital Media Operations from Aegis/Carat USA, believes that consistency is the best practice for handling contracts. Aegis has one standard set of T&Cs for majority of their buys and doesn’t allow for different permutations deal by deal, however, they will consider exceptions for business-related terms that are specific to a buy to be inserted into the insertion order (eg. cancellation terms, competitive lists, editorial adjacency). Publishers may find that most legal exceptions won’t be accepted by Aegis, (especially regarding privacy, data, payment terms,liability), but that publisher feedback on specific terms have led to company wide changes. Their policy is typically to hold off using a new technology or provider until all the contractual language has been worked out.

Several people I spoke with talked about replacing deal-by-deal terms with a Master Service Agreement (MSA). Negotiating a bigger relationship has certain advantages and can hopefully allow more advertising to be bought and sold between partners. Matt Warnock, Senior Manager, Client Services PGA TOUR Digital and Entertainment, recommends getting the right people in the room. Having your legal team up to speed and involved from the start can help make an MSA happen.

Not everyone agrees that MSAs are the way to go as they can be difficult to manage. A MSA with a holding group that has several agencies (and therefore many media planners) means a lot of people have to be aware of the MSA and how it differs from the standard T&Cs. The same can be true on the publisher side as most will not have a process in place to alert the appropriate people that a MSA is in effect. In addition, with ever-changing technology, a MSA probably winds up being out of date relatively quickly. 

One other recommendation would be to track the cost of negotiating terms. You should already have a handle on what you and your ops department ‘charge’ on an hourly basis. Track time spent dealing with contracts and make it a known number. You might find that your own amendments cost you more than you gain in return. You may find that deals below a certain revenue size with a number of amendments aren’t profitable. 

State of Mind

Just like how your table manners are determined by how your parents raised you, how different ad operations people approach paperwork depends on their company experience. For some, T&Cs are a non-issue – if legal and management doesn’t care, why should you? For others, the stakes are high and every detail is important. 

Therefore, the attitudes of buyer and seller will determine how good of a match they make. Both laid back? Easy-peasy. Both detail oriented? Your work is cut out for you, but you already knew that. A mix of the two types, however, and you’ve got yourself an uncertain outcome. To minimize the back and forth, identify the correct person on the other side that should be the contact for working through amendments.

Ultimately, this paperwork amounts to a contract – a legally binding document. An agency is acting on behalf of its clients, and a data-related issue could become a PR disaster. You’re not working in the best interest of your client if you don’t address data issues in the contract. Attention should be paid to the amendments that are being made – and ad operations will be the group that understands the implications. That in turn must match your own data policies so that you are acting in good faith.

Several people I spoke to pointed out that most amendments around data are the same from company to company. This is something to take advantage of – it can not only speed up your response, but also escalate policy decisions that need to be made to follow trends. Amendments regarding verification services weren’t as commonplace a few years ago, but now I suspect they are in the majority of deals being made. Create a repository to store all the information you learn through this negotiation process. Use this repository to train your teams on what to look for and what details need to be managed.

Post-Deal Maneuvering 

Sure, the paperwork is done, but the job isn’t over. Depending on your team structure, you’ll have to create a way to communicate any essential information from the contract to the creative QA team, traffickers, etc. While most likely this will be in a notes field in your order management system, you’ll have to make sure it is standard operating procedure to read, understand and follow the terms of the contract.

Finally, you’ll need to monitor. As I mentioned earlier, the agency may have a vendor setting cookies or collecting data on their behalf. Flag this as early in the process as possible, but don’t assume that one check will suffice. Follow the campaign throughout its lifespan to make sure the very protections you negotiated for remain in place.

Better Practices

If someone presenting at one of our events suggested that their main recommendations for T&Cs negotiation were “transparency” and “communication,” I’d give them some grief for taking the easy way out. However, I cannot avoid using those words. Data terms are about protection and being transparent upfront about the usage of data will go a long way to streamline this part of the process.

Agencies often add data-related amendments to protect themselves from publishers who may be using data in ways that endanger their clients. Publishers see data leakage as a huge danger to their businesses. Stating upfront what data will be used and how can prevent negotiations at the 11th hour.

It occurs to me that some of these data amendments stem from agencies needing to verify that their ads are served correctly or are being viewed. There’s no turning back the clock, but if from the beginning publishers served advertising with the buyer’s best interests at heart, verification would not have been such a jolt to the system. Viewability is still being figured out – get ahead of it and clean up your inventory if you have to.

New standard T&Cs are at best a couple of years off. In the meantime, I think we’d all benefit from starting to standardize the amendments. The IAB has begun a working group asking for the industry to share their amendments and while some have, there will need to be broader industry input for the project to be a success. Collectively we would do a lot for the industry to reduce the paperwork headache.

The education process of sales, management and legal departments will continue to be part of the ad operations job description. The education, however, needs to start within ad operations. Understand what is happening under the hood of your campaigns so your paperwork and policies correspond to reality.