A while back, I wrote an article titled “3 Things to Address in Digital Media Agreements,” which focused on issues related to the purchase or sale of ad space on different media channels (e.g., websites and mobile applications). That article included a discussion of agreement terms related to (1) content – the content of the ads as well as the content of the publisher property where the ads will appear, (2) tracking and reporting on delivery of the campaign, and (3) the collection and use of data related to the campaign. Those are three of the biggest issues that arise in digital media deals. But in today’s world, a good portion of media transactions are facilitated via technology platforms. An advertiser or its agency may use a demand-side platform (DSP) to programmatically buy digital ad space for its advertising campaign; a digital publisher may make its digital ad inventory available for purchase through a sell-side platform (SSP) or ad exchange; and social media, e-commerce, digital gaming, and CTV companies may provide access to proprietary platforms and tools advertisers can use to place ads on their properties, etc. Thus, in addition to terms related to the purchase and sale of media inventory, agreements in this space frequently also cover the issues that generally arise in technology platform agreements. Query whether these are technology transactions with an advertising component or advertising agreements with a technology component, but either way, you will want to cover all these issues in your agreements. Therefore, this article builds on that first article and focuses on issues and concerns that arise in connection with the use of platforms to buy and sell media.
1. Description of Platform and Related Services
This one may seem like a no-brainer. Of course you would want to include a good description of the platform and related services. But I see many agreements that leave the reader guessing as to what the platform includes and the functionality it provides. Other agreements are silent on the issue altogether, and you would not know from reading them that orders were facilitated by logging into and using a platform. There may be different schools of thought on how much detail should be included, and perhaps there are certain instances where there are strategic reasons for including less, but in general I find it helpful to include a good description. In any event, you will want to have a good understanding of the functionality to draft terms that cover it. If you are the platform provider, hopefully you know the functionality. If you are the customer using the platform, here are some good questions to ask: Is there a user interface? How are orders entered and campaigns set up? Does the platform provide access to campaign reporting or other deliverables? Is there functionality for importing or exporting other data (e.g., importing audience data)? Are there options for leveraging third-party products and services through the platform? If you can get a demo and see for yourself, all the better.
2. License/Access Grant
As with any other technology platform agreement, the agreement should include a grant of rights to access and use the platform and platform-enabled services, as well as any applicable restrictions related to use of the platform. This may include requirements to comply with certain platform policies and technical requirements. As a customer, it is important to be aware of and review any embedded, referenced, or linked terms and policies. Customers should also ensure the access right extends to any employees, subcontractors, consultants, agencies, or other third parties who will need to access the platform and services on their behalf.
3. Standard Reps, Warranties, and Indemnities
The agreement should address all the standard reps, warranties, indemnifications, and other risk allocation issues you would find in any agreement – such as coverage for a party’s failure to comply with laws or infringement of third-party rights – but may also address issues more specifically related to platforms, like the presence of viruses, malware, or other harmful code.
4. Maintenance and Support
The agreement should address service levels and any other maintenance and support requirements. Some things to consider are availability/uptime requirements; processing speed requirements; how updates and bug fixes will be handled; how technical issues are reported and addressed, including expected response times; and whether the platform provider is required to provide any training or assistance with using or integrating with the platform. You may also want to consider what will happen at the end of the relationship, e.g., any requirements related to transition assistance and return or deletion of data. In addressing these issues, the parties should consider the effect platform downtime or a malfunction may have on media campaign planning and execution, and what the ramifications might be for the customer.
5. Third-Party Products and Services/Pass-Through Terms
Another question to consider is how third-party products and services are addressed in the terms. In the digital advertising space, it is common for platform providers to enable their customers to access various third-party products and services in connection with use of the platform, e.g., third-party data, third-party media inventory, and third-party measurement and verification solutions and services. It should be clear what terms govern the use of those third-party products and services. And, as a platform customer, you will want to review and vet any third-party pass-through terms incorporated into the agreement.
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