How are the Terms of Use and Privacy Policy handled on white labels?

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How are the Terms of Use and Privacy Policy handled on white labels?

Hello! Thanks for your question about how terms of use and privacy policy are handled as far as white label products or services are concerned. I understand that you are particularly interested in whether white label clients should create and upload their own terms of use and privacy policy.

The short version is that, while Wonder does not offer legal advice and a categorical answer to your question is not publicly available, I came across five white label agreements or terms of use indicating that white label clients have their own terms of service and privacy policy. These white label clients are bound by the white label terms of use to prepare their terms of service and privacy policy such that they are not in disagreement with those of the white label service provider.

Below you will find my methodology and findings.

METHODOLOGY

The first thing I did was check if there are articles, studies, or reports that directly answer your question. After an extensive search using keywords such as white label, privacy policy, terms of use, and terms of service, however, I was unable to find any material that explicitly states how the situation you described should be dealt with. Because of this, I proceeded with looking for white label agreements or contracts and checking whether they contain any indication of clients or licensees having their own terms of use and privacy policy. This approach proved more fruitful as I was able to find a number of helpful white label agreements or terms of use.

FINDINGS

As you are already aware, Wonder does not provide expert legal advice and a lawyer is in a better position to answer your question. But, as you suggested, I looked for publicly available information that could help you decide on the matter. What I found is that there are a number of white label terms of use or agreements online that indicate a setup where clients or licensees have their own terms of service and privacy policy. Clients or licensees are bound by the white label agreement or terms of use to make their terms and policies consistent with the licensor's terms of service and privacy policy.

The pages I saw that hint at this arrangement are as follows:

1. Noon Pacific LLC's White Label API Terms of Use

Section 3.b. (Content and Privacy > User Data and Privacy) of this page contains the following statements, which point to the fact that Noon Pacific's white label clients have their own privacy policy:

"We expect you to have a privacy policy in place which explains how you collect, store, process, transfer and use any Personal Data. Your privacy policy should adopt standards that are consistent with White Label's privacy policy when it comes to storage and use of Personal Data, and you must ensure that you comply with your privacy policy and all privacy and data protection laws applicable to you at all times (in particular, any use of email addresses that our users have chosen to share must be in line with relevant anti-spam laws, such as the CAN-SPAM Act and the Privacy and E-Commerce Regulations)."

In addition, section 5.d. (Other Legal Terms >Representations and Warranties) of this page contains the following statement, which indicate that Noon Pacific's white label clients have their own Terms of Service:

"You have the right to distribute and make available your app to end users thereof, and your app and end users' use of your app in compliance with your app's terms of service (if any), does not and will not infringe or violate the rights of any third party or any applicable law, rule or regulation."

Noon Pacific is a California-based company that curates music. Through its White Label API, Noon Pacific offers a less complicated way of starting a curated music app.

2. Mobelio's White Label Terms of Use or Agreement

The "Your Obligations" section of this page contains the following statement, which indicate that the licensee prepares its own terms and conditions:

"As a White Label Website licensee, you hereby agree that you shall ensure that your customers agree to terms and conditions similar to the provisions contained in the Company's Terms of Service."

Based in Greater Manchester, Mobelio is a company that offers a platform for mobile marketing.

3. MicroStrategy's White Label Service Terms and Conditions

Section 10 (End User Terms) of this page contains the following statements, which indicate that white label clients will draw up their own terms of service and privacy policies:

"You will enter into binding and enforceable agreements with each End User, including terms of service and privacy policies, that govern such user’s access to and use of the White Label Application and any content contained therein (the “White Label Policies”). The White Label Policies must be consistent with the terms of this Agreement, must comply with all applicable Platform Policies, and must at a minimum meet the following requirements..."

Known for its enterprise software platforms, MicroStrategy is a company based in Virginia.

4. Pressed White-Label Hosted Platform - Agreement

Section II.D. (Partner Responsibilities & Representations) contains the following statement, which hints at the possibility of the partner having its own terms of service and privacy policy:

"Partner shall ensure any and all of Partner’s marketing, communications, promises and actions meet the requirements of this Agreement, the WP Managed Host standard Terms of Service (the “TOS”), Resource Usage Policy (the “RUP”), and Privacy Policy (the “Privacy Policy”), each of which is incorporated herein by reference (collectively, “End User Documents”)."

Pressed is a company offering white-label managed Wordpress hosting services.

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Apart from these pages, I saw an article where the author, a lawyer at law firm Flaster Greenberg, prepared a white label agreement that he hopes will serve as a model contract between white label platform providers and crowdfunding portals. The post is a bit dated considering it was published in November 2014, but the model agreement, particularly the section "Responsibility for Operation of Portal," contains the following statements, which indicate that the white label customer will be responsible for its own terms and policies and for all content on its portal:

"The parties agree that Customer, and not Company, is solely responsible for the operation of the Portal. The role of Company is only to provide the Platform and the Services. Company does not act as a fiduciary, business or legal advisor, or co-venturer. Customer is solely responsible for ensuring that the Portal is operated in accordance with applicable laws, for monitoring the content displayed on the Portal, and for establishing the terms of its relationships with users of the Portal. Company is not responsible for any information or content displayed on or transmitted through the Portal."

CONCLUSION

To wrap it up, a number of white label terms of use or agreements that are available online demonstrate that white label clients prepare their own terms of service and privacy policy. As per these white label agreements, the white label clients' terms and policies should not contradict those of the white label service provider. For expert legal advice, it is best to consult a lawyer who is experienced in drafting white label contracts.

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