42. I think that the data-sharing contractual terms in my contract are unfair. What can I do?

Firstly, it should be ascertained that the terms in question are covered by Article 13 of the Data Act:

• they concern access to and the use of data or liability and remedies for the breach or termination of data-related obligations;

• they do not reflect mandatory provisions of EU law, or provisions of EU law that would apply if the contractual terms did not regulate the matter;

• they are unilaterally imposed; and

• both parties to the contract are enterprises.

Secondly, it should be assessed whether the terms grossly deviate from good commercial practice in data access and use, contrary to good faith and fair dealing. A non-exclusive list of such terms is provided in Article 13(4) of the Data Act. Such terms should always be considered unfair. Thirdly, the terms in question might fall into a different category: terms which are only presumed to be unfair. The party imposing them can rebut such a presumption by presenting evidence to the contrary. Such terms are listed in Article 13(5). If the conclusion of the above assessment confirms that a term in a contract is unfair or presumed to be unfair, the party imposing such a term should be asked to withdraw it from the contract. In any case, a term found to be unfair will not be binding on the party on which it is imposed. The remaining contract terms will continue to be binding if the unfair term can be separated from them (i.e. it is sufficiently standalone). If the imposing party disputes the outcome of the assessment and does not withdraw the term, the matter can be brought in front of a competent authority, the courts or (if the other party agrees) a dispute settlement body.