Illustrative Terms and Conditions
Preventing adfraud requires a proactive approach (see our blog post) with transparency across your media supply chain. The following (developed by Reed Smith, the ANAs outside legal counsel) illustrates one approach to the definition of fraudulent traffic and the safeguards that might be negotiated between advertisers and media companies. You should of course consult with your own legal counsel to develop provisions that best serve your organization's specific interests
(a) “Fraudulent Traffic” means the inclusion in reports, bills or other information and materials associated with this Agreement, of data that counts or uses in calculations, anything other than natural persons viewing actually displayed Ads in the normal course of using any device, including, without limitation, browsing through online, mobile or any other technology or platform. For the avoidance of ambiguity, Fraudulent Traffic includes, without limitation, the inclusion or counting of views: (i) by a natural person who has been engaged for the purpose of viewing such Ads, whether exclusively or in conjunction with any other activities of that person; (ii) by non-human visitors; (iii) combinations of displays directed or redirected by any combination of (i) and/or (ii); and (iv) that are not actually visible to the human eye, discernible to human senses or perceived by a human being.
(b) Media Company will establish, implement and use all commercially reasonable technology and methodologies to: (i) prevent Fraudulent Traffic; (ii) detect Fraudulent Traffic should it occur; and(iii) promptly take steps to prevent continuation and/or recurrence of occurrences thereof. Media Company will ensure, by agreement, instruction or any other legally enforceable means, that all third parties to which Ads are delivered, displayed or made available (including, without limitation, DSPs) have adopted and implemented technology and methodologies (and agreed in writing thereto) to ensure Media Company is in compliance with the foregoing obligations. Media Company agrees that Advertiser shall have no obligation hereunder, for compensation, liability or otherwise in respect of Fraudulent Traffic and shall not be billed or required to pay for Fraudulent Traffic. To the extent any payment attributable to Fraudulent Traffic is or may be paid by Advertiser, Media Company shall, within five (5) days, reimburse and refund such payment to Advertiser, together with reasonably adequate documentation to substantiate the accuracy of any such reimbursement or refund. Unless otherwise included in another audit provision hereunder, Advertiser or its designated auditors shall be entitled to audit the books and records (including, without limitation, log les) of Media Company for the purpose of determining compliance with these Terms.
(c) Media Company will (i) upon request by Advertiser or Agency, permit Advertiser and/or Agency to deploy fraud detection, traffic validation or other technologies on Ads to measure compliance with these Terms, (ii) disclose to Advertiser and Agency in writing (and update on an on-going basis) its practices for sourcing third-party traffic and audience extension, (iii) disclose to Advertiser and Agency in writing (and update on an on-going basis) its practices for reducing Fraudulent Traf c, (iv) provide third-party monitoring or certi ed reports of the Deliverables upon request.