One of the Interactive Advertising Bureau's early initiatives involved streamlining the way that media buyers and media sellers do business. This was a good thing. Prior to the IAB making this an important item on our collective agendas, deal-making within digital was a horror show that involved the production of hundreds if not thousands of individually sized custom creative executions and contracts that required extensive legal review. Removing these obstacles was a great thing for the interactive business.

The development of standard ad packages helped reign in production costs and time to market. Standard Terms & Conditions, developed in concert with the AAAA, reduced the time and expense of having legal departments review each and every contract. It also helped set expectations for the client, agency, and seller.

As the industry continues to evolve, though, the Terms & Conditions that served us so well are becoming archaic, and we've started to revisit the notion of reviewing each contract in gory detail. I've even heard the old joke resurface about referring to in-house lawyers as the "Business Prevention Department."

I don't think we should look at this encumbrance as a failure of the IAB or the AAAA. Market conditions fluctuate, and as they do, certain terms and conditions that were agreed upon long ago tend to resurface as buyers and sellers gain and lose negotiating leverage. I believe that will always happen, and there's little we can do to prevent it.

There are, however, aspects of the contract between buyer and seller that the IAB/AAAA Standard Terms & Conditions (version 2.0) didn't originally envision or address. We need an update, as a result, but we don't have it today, so agencies/advertisers and their media selling partners are going to need to identify some of the friction points and proactively address them in the interests of keeping things streamlined. Among those areas in which there are potential conflicts:

Data privacy
I doubt that anyone could have accurately gauged the importance of custom audience development within the grand scheme of things. Media agencies are helping their clients build custom audiences and segments that are specific to the type of people individual brands want to reach. This requires an investment in both brain power and technology on the part of the advertiser. The potential exists for sellers to be able to leverage this investment on behalf of other clients, and -- let's be perfectly frank for a second -- it's highly unlikely that the advertiser originally making the investment would ever know that what it considers to be "owned data" assets are being used to help a competitor. 

Putting aside the notion of whether or not it's feasible for an advertiser to "own" such data for a minute, I think it's important for companies that want to work together with the expectation that the advertiser is the exclusive owner of audience data to develop strong addenda to the IAB/AAAA terms that clearly state this. I'd even go as far as to specify a penalty in the event of a violation of that trust, given that it's difficult to place value on data assets and what they mean to advertisers.

Custom Placements
The existing Terms & Conditions provide for cancellation of insertion orders, and there are established timelines and processes for doing so in the event an advertiser needs to pull out of an ad deal. However, the need for custom production for things like sponsorships, specialized ad units, applications and the like seems to have accelerated.  Let's be frank and understand that it's not fair to publishers to ask them to invest production resources up front and have the ad campaign canceled before they're able to recoup their investment. Custom production deserves custom treatment in insertion orders, and we need to be prepared as buyers to have custom production aspects of a deal be non-cancellable.

Questionable content or environments
Most agencies I know have some sort of addendum to deal with content environments that are inappropriate for the brand. They also have language that deals with serving ads on network buys in unapproved venues. As the fluidity of the marketplace increases and network/exchange buying becomes more important to advertisers, we need to tighten up these addenda. Again, here is a spot where I might consider adding a very specific penalty clause in the event ads run where they are not supposed to. As we've seen demonstrated time and again in various industry articles about high-end brands running on pornographic and hate sites, ads that run in unapproved venues have great potential to do harm. I think that specific penalties can provide a strong deterrent against the practice, as well as making things simpler in the event of a violation.

Again, this is by no means a comprehensive list, but it should get us thinking about our expectations and how they're being met. All in all, I think the Terms & Conditions are sorely in need of an update, but in the meantime, we ought to be cognizant of where they fall short, and ensure our contracts are in order.

Tom Hespos is the president of Underscore Marketing and blogs at Hespos.com.

On Twitter? Follow Tom at @THespos1 or @_MarketingLLC. Follow iMedia Connection at @iMediaTweet.