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Software procurement has become a central feature of modern business operations. Organizations increasingly rely on third‑party tools to support internal workflows, manage data, and deliver products and services to customers. As a result, vendor due diligence is no longer a purely procurement or contracting function. It is a core risk management exercise.

Despite this shift, many organizations still approach software procurement in a linear way. The business identifies a tool, procurement advances the deal, and Legal is brought in late to review contract terms. That approach assumes software presents a uniform level of risk.

It does not.

The legal and regulatory risk associated with software depends heavily on how the tool is used, what data it processes, and how much the business or its customers rely on its outputs. Understanding those factors early is essential to allocating risk appropriately and drafting contracts that reflect operational reality.

Continue Reading Rethinking Vendor Due Diligence: Software Procurement Starts Before the Contract
CCPA

It’s been no doubt a week of mixed emotions at the California Privacy Protection Agency (“CPPA”) which last week had its final CCPA regulations (“Regulations”) approved and filed with the California Secretary of State by the Office of Administrative Law. The final regulations have been stated to be “effective immediately”. The result is that California employers are now going to have a significant burden around compliance with California privacy law which they didn’t have previously.

Taken on its face, “effective immediately” would mean that enforcement of the regulations would be available (if not acted upon) immediately. However, as with much about the CCPA, this may not be definitive.

First, the California Administrative Procedure Act (“APA”) provides that regulations become effective on one of four quarterly dates based on when the final regulations are filed with the Secretary of State. Under the APA the enforcement date would still be July 1, because the regulation was filed between March 1 and May 31. See Cal. Gov. Code §11343.4(a)(3).

Second, Proposition 24 (the actual amendment to the CCPA) itself provides timing of enforcement of the new provisions of the CCPA. Specifically, Cal. Civ. Code §1798.185(d) states “Notwithstanding any other law, civil and administrative enforcement of the provisions of law added or amended by this act shall not commence until July 1, 2023.”

Continue Reading CCPA Regulations Are Here – We Think

In a long awaited decision, the European Commission (“Commission’) adopted two new sets of standard contractual clauses (“SCCs”) to reflect the EU’s General Data Protection Regulation (“EU GDPR”) and ‘the realities faced by modern business’ (see the Commission’s press release). These replace the current SCCs that were adopted over 10 years ago under the, now repealed, Data Protection Directive. The EU’s Commissioner for Justice, Didier Reynders, cited the SCCs as providing companies with ‘more safety and legal certainty’ and as being ‘user friendly tools’.

It is important to note that the new set of SCCs is significantly different than the previous set. For example, instead of focusing on the status of the parties as “controller” or “processor”, the new SCCs focus on the location of the parties, regardless of status. This is a significant departure from the prior form.
Continue Reading Out With the Old, In With the New: New GDPR Standard Contractual Clauses