White Label Agreement

A White Label Agreement in the United States governs the relationship between the parties by fixing what each must do.

White label arrangements are widespread across US industries. In software-as-a-service (SaaS), a platform provider licenses its platform to digital marketing agencies, who rebrand it and offer it to their clients under the agency's own brand name. In consumer packaged goods, a manufacturer produces a product to a retailer's specifications and sells it without branding; the retailer applies its own private-label brand. In financial services, a bank or fintech company provides underlying payment processing, lending infrastructure, or investment management services that a brand-name company offers to consumers under its own identity — a structure known as Banking-as-a-Service (BaaS). In healthcare, medical device manufacturers supply devices that are rebranded and sold by hospital systems or distributors under the distributor's name.

A White Label Agreement is distinct from a standard reseller agreement. Under a reseller agreement, the reseller sells the supplier's products under the supplier's brand — the end customer knows they are buying the supplier's product. Under a white label agreement, the reseller sells the product under its own brand. White label agreements are also distinct from original equipment manufacturer (OEM) agreements, in which a manufacturer supplies components incorporated into another company's finished product, with the finished product sold under the OEM's brand. White label agreements are similarly distinct from private label agreements, which specifically refer to retail goods manufactured by one company and sold under a retailer's brand — the term 'private label' is most common in consumer goods, while 'white label' is more common in software and services.

Trademark law under the Lanham Act imposes important obligations in white label arrangements. When a trademark owner (the reseller) licenses another party (the supplier) to produce goods or deliver services bearing the reseller's trademark, trademark law requires that the licensor (reseller) exercise quality control over the licensee's (supplier's) products and services. Failure to exercise adequate quality control results in a 'naked license' — an uncontrolled trademark license — which can result in the trademark owner losing trademark rights entirely under the doctrine established in Dawn Donut Co. v. Hart's Food Stores Co., 267 F.2d 358 (2d Cir. 1959). White label agreements must therefore include detailed quality control provisions that give the reseller the right to inspect, audit, and reject non-conforming goods or services.

The Defend Trade Secrets Act of 2016 (DTSA, 18 U.S.C. § 1836 et seq.) and state trade secret laws (most states have adopted some version of the Uniform Trade Secrets Act (UTSA)) protect the supplier's proprietary technology, formulas, and processes disclosed to the reseller under the white label arrangement. The agreement should include strong confidentiality and trade secret protection provisions to preserve these protections.

A US White Label Agreement is needed whenever a business grants another business the right to resell its products or services under a different brand name, with the end customer unaware of the underlying supplier's identity.

Software developers and SaaS platform companies need White Label Agreements when licensing their platforms to agencies, consultants, or enterprise customers who want to offer the software to their own clients under a private brand. Without a written agreement, the scope of the license — permitted users, permitted territories, permitted use cases, and branding obligations — is undefined, and neither party has clear rights or obligations. SaaS white label agreements must address software hosting obligations, service level agreements (SLAs), data ownership under applicable state data privacy laws (California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq.; Virginia Consumer Data Protection Act, Va. Code § 59.1-575 et seq.), and the treatment of end customer data upon termination.

Manufacturers of consumer products — food and beverage, personal care products, dietary supplements, cleaning products — need White Label Agreements when supplying private-label goods to retailers such as grocery chains, drug stores, and online marketplaces. The agreement must address FDA labeling requirements (21 C.F.R. Parts 101–110 for food; 21 C.F.R. Part 201 for drugs and supplements), minimum order quantities, packaging specifications, and how changes to the product formulation will be communicated and approved.

Financial services companies structuring Banking-as-a-Service arrangements need White Label Agreements that address regulatory compliance obligations under the Bank Secrecy Act (31 U.S.C. § 5311 et seq.), the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.), and state money transmission licensing requirements. The agreement must specify which party holds the regulatory licenses, which party is responsible for KYC/AML compliance, and how consumer complaints and regulatory inquiries will be handled.

Healthcare technology and medical device companies entering white label arrangements need agreements that address FDA regulatory compliance, including 510(k) clearance or PMA approval under the Federal Food, Drug, and Cosmetic Act (FDCA, 21 U.S.C. § 360 et seq.), and Health Insurance Portability and Accountability Act (HIPAA) Business Associate Agreement requirements under 45 C.F.R. Part 164 for arrangements involving protected health information (PHI).

Digital marketing agencies and professional services firms that resell software tools, analytics platforms, or reporting dashboards under their own brand need White Label Agreements that clearly define the scope of permitted customization, the sub-licensing rights to end customers, and the agency's obligations regarding support, updates, and end customer compliance with the underlying software's terms of use.

A properly drafted US White Label Agreement must address the commercial, intellectual property, quality control, and termination aspects of the arrangement with specificity sufficient to govern a long-term business relationship.

The parties and recitals clause identifies the supplier (licensor) and reseller (licensee/white label partner) by their full legal names and states, describes the nature of the white label arrangement, and recites the commercial purpose. For corporate parties, the agreement should confirm the entity type (Delaware corporation, California LLC, etc.) and the authority of the signatory to bind the entity.

The license grant clause is the core provision. It specifies: (a) the scope of the license — what products or services the reseller may offer under its brand; (b) exclusivity — whether the license is exclusive (the supplier will not license the same product to any other reseller in the same territory or market) or non-exclusive; (c) territory — the geographic scope of the permitted resale; (d) term — the duration of the license; and (e) permitted sub-licensing — whether the reseller may sub-license to end customers, and on what terms. Under the Uniform Commercial Code and the Copyright Act, a license that does not specify exclusivity is presumed to be non-exclusive.

The intellectual property ownership clause confirms that all IP in the underlying product — patents, copyrights, trade secrets, trademarks, and know-how — remains owned by the supplier. The reseller receives a license only, not an ownership interest. Any customizations, modifications, or derivative works created during the agreement must be allocated: if the supplier creates a custom feature for the reseller, the agreement must specify who owns that feature. Under 17 U.S.C. § 101, a work created by an independent contractor qualifies as a 'work made for hire' only if it falls within one of nine statutory categories and a written work-for-hire agreement is signed — the parties should address this explicitly for any custom development work.

The quality control clause is required to maintain the validity of the reseller's trademark license. The Lanham Act requires that the trademark owner (reseller) exercise meaningful quality control over the supplier's goods and services. Quality control provisions should specify: the product or service specifications and standards; the supplier's obligation to provide samples, test reports, or certifications; the reseller's right to audit the supplier's facilities, processes, and records; and the reseller's right to reject non-conforming goods or services. For FDA-regulated products, the agreement must address Good Manufacturing Practices (GMPs) and any applicable FDA quality system regulations.

The fees and payment clause specifies the commercial terms: wholesale pricing, minimum order quantities, royalty rates (for license-based arrangements), payment terms (net 30, net 60), currency, invoicing procedures, and late payment penalties. For subscription SaaS white label arrangements, the clause should address per-seat pricing, usage-based pricing, or revenue-sharing structures, and the treatment of refunds requested by end customers.

The confidentiality clause protects the supplier's trade secrets — product formulas, software source code, technical know-how, pricing structures, and customer data — disclosed to the reseller under the Defend Trade Secrets Act (DTSA, 18 U.S.C. § 1836) and applicable state trade secret law. The clause should specify the duration of the confidentiality obligation (typically surviving termination of the agreement for 3 to 5 years, or indefinitely for trade secrets).

The representations and warranties clause includes the supplier's warranties that: the product conforms to the agreed specifications; the supplier owns or has licensed all IP in the product; the product does not infringe any third-party IP rights; and the product complies with applicable laws and regulations. Disclaimer of implied warranties (including the implied warranty of merchantability under UCC § 2-314 and the implied warranty of fitness for a particular purpose under UCC § 2-315) should be expressly stated.

The limitation of liability and indemnification clause allocates risk between the parties. The supplier should indemnify the reseller against third-party IP infringement claims. The reseller should indemnify the supplier against claims arising from the reseller's marketing, sales, and end customer relationships. Limitation of liability caps — typically set at the fees paid in the 12 months preceding the claim — are standard in commercial contracts and must be drafted with awareness of state law restrictions on liability disclaimers for gross negligence and willful misconduct.

The term and termination clause specifies the initial term (typically 1 to 3 years), automatic renewal provisions, termination rights for cause (material breach with notice and cure period), and termination rights for convenience (typically on 60 to 90 days' written notice). The post-termination provisions address the reseller's sell-off period for existing inventory, the transition of end customer relationships, the return or destruction of the supplier's confidential information, and the cessation of use of the reseller's branding by the supplier.