White labeling a SaaS, what are the clauses to include in the agreement?

The white label SaaS agreement allows a SaaS publisher to offer its software solution to a third party (the customer) who markets it under its own brand, without revealing the real supplier to end users. This model has significant commercial advantages, but requires particular vigilance on certain legal points. Here are the key elements to integrate to effectively secure your white label SaaS contracts.

1. Clearly define the concept of white label

The first essential step is to precisely define what the “white label” is in the contract, for example:

“Provision of the SaaS Solution for use under the Customer's brand, without mention of the Service Provider to end users.”

It is crucial to specify that the contract relates exclusively to the license to use the SaaS platform, intended to be marketed by the customer to its own users.

2. Adapting the rights of use

The contract must clearly specify the rights granted to the customer:

• Non-exclusive, non-transferable, possibly territorial or global license.
• Customization rights (name, logo, colors, URL).

The difference with the SaaS contract is essentially about customization, which is not possible in traditional SaaS.

3. Obligations of the customer

Clearly define customer obligations, including:

• Formal ban on presenting yourself as the original developer of the solution (it is not necessary to be 100% transparent except for the part relating to the outsourcing of personal data, but do not go beyond that).
• Prohibition to modify the source code or to reverse engineer.
• Obligation to strictly respect the uses authorized by the contract.

4. End user access

Two approaches can be considered:

• Option 1: the Saas publisher contracts only with the customer, who assumes all responsibilities towards end users.
• Option 2: the SaaS publisher imposes certain obligations directly on end users via clearly referenced General Terms of Use (CGU).

Regardless of the option chosen, a clause must provide for the exclusive responsibility of the customer for the actions of its end users.

5. Intellectual property

This section should explicitly state:

• The exclusive property of the publisher SaaS on the solution, even when rebranded.
• The absence of transfer of intellectual property in case of personalization.
• The strict framework for the use of brands and logos.

The customer is only the owner of his brand elements, which he integrates into the solution during the configuration.

6. Support and maintenance

It is necessary to clearly define:

• Who is responsible for supporting end users (SaaS customer or publisher).
• Deadlines, service levels (SLAs), and support modalities.

In general, the customer is responsible for first-level support and the SaaS publisher for the second level. In principle, the SaaS publisher does not interact with the end customer.

7. Protection of personal data

This crucial part should specify the roles:

• Customer: generally responsible for processing.
• SaaS publisher: subcontractor.

Provide for a detailed data processing agreement (DPA), as well as the customer's obligations to inform its end users. The SaaS publisher will be declared as a RGPD subcontractor.

8. Responsibility and guarantee

• Explicitly limit the responsibility of the SaaS publisher towards end users.
• Include an indemnification clause if the behavior of the customer or its end users causes harm to the SaaS publisher.

The objective is to provide a clear separation between the obligations of the SaaS publisher (to provide the technical platform), and of the customer (to provide the adapted solution to its own customers, for its own use).

Conclusion

A well-written white label SaaS contract effectively protects the interests of the SaaS publisher while offering sufficient flexibility to the customer to effectively market the solution under its own brand. I can assist you in drafting and negotiating your white label contracts.

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