Online Terms and Conditions

My last column tackled how agencies and publishers have misused the important request for proposal (RFP) process and offered fixes for both sides of the fence to get this valuable tool back on track.

Now, at the risk of tainting my blossoming career as the “Acronym Columnist,” I want to address another burning issue: the totally screwed-up world of interactive terms and conditions.

Let me illustrate with my little own nightmare, one that’s surely repeated in hallways and office cubes across interactive land.

Please, Take My Money!

I have $350,000 to spend in the search category. We identify the right buy based on solid business and marketing objectives. The publisher offers up great service and a sound solution to meet client needs. We come to a buy agreement. Note: Client loves it, Agency loves it, and Publisher loves it. A magical moment in the mayhem we call interactive marketing.

Then, the storm begins to brew. We submit our standard, IAB-sanctioned terms and conditions (T&C) form with a minor addendum to cover a unique business issue (war clause). We get the first “response” from the publisher’s legal department; our standard T&Cs won’t work for this buy. We inquire about what fixes need to be made. We get not one but two versions of what the publisher wants as an addendum, according to its legal department. Then, after only four weeks of back-and-forth, we finally agree to wording and sign the darn document.

Now, I have no issue with a publisher adding clauses that address primary business parameters not covered in the structure of the T&Cs. In this case, the publisher properly addressed specific CPC issues.

What I don’t agree with is using the opportunity to add new legal phrases that principally benefit the publisher that are addressed in the T&Cs. Situations like this makes me feel like the Barrister Bus stopped by Dulles, VA, picked up recently unemployed legal eagles, drove cross country and dropped them off in the Bay Area. Do we have to take a step back here?

Looking at the situation from a publisher’s perspective, we agency folk are no saints, either. According to Doug Weaver of the Upstream Group, a consultancy that works with the publishing community, over 80 percent of the top online publishers readily comply the T&Cs. Yet in their experience, maybe 15 percent of online agencies comply with the principle intent of the T&Cs.

Folks, we all asked for them. Let’s all start using them. Today.

Time to Step Up to the Plate

I challenge my fellow agency brethren to follow a few simple edicts so we don’t get stuck at the end of Desperation Drive. Here’s what we need to do on the agency side:

  1. Wake up and read the first word in the T&Cs. It says “standard.” As in “Standard Terms and Conditions.” That means don’t change them. Ever. To resist temptation, write your agency name in the document and knock out a PDF so people within your organization won’t monkey with it.

  2. Insist any change be handled in an addendum. And before you jot down an item for that addendum, better check twice you are not materially altering the T&Cs’ intent. If that wasn’t clear, return to the start and read number one again. If you want to create more stability and growth in our industry, just accept this step as table stakes.
  3. Bake how you approach T&Cs into the RFP and note any variance. Insist the publisher understands this parameter in advance of submitting a proposal. That way, there are no debates or issues once the buy is approved.
  4. Refuse to sign any document in which the T&Cs have been altered by the publisher. Only accept addenda that don’t change the core.

We do thank the hard-working industry individuals who are steadily making progress at producing T&C versions for search and email programs. Finalized T&Cs for these areas could not arrive soon enough. We’ve all got to do a better job of complying with the intent of what’s already been set forth.

Do your part. Hopefully, we can soon think of T&Cs as “thanks and congratulations” for a great buy for our clients.

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