42a. To which extent does the unfairness control in Article 13 of the Data Act apply to agreements or contracts that are primarily on another subject, but which contain provisions on data sharing?

Article 13 (1), Chapter IV on unfair contractual terms applies to any contractual term ‘concerning access to and the use of data or liability and remedies for the breach of data related obligations’ in contracts concluded between enterprises. Recital 60 of the Data Act clarifies that ‘the rules on unfair contractual terms should apply only to those elements of a contract that are related to making data available, that is contractual terms concerning access to and use of the data as well as liability or remedies for breach or termination of data related obligations. Other parts of the same contract, unrelated to making data available,’ should not be subject to Chapter IV. The Data Act therefore does not require that data be the main or unique subject of the contract where the term is stipulated, for such term to be covered by the unfairness control. As a consequence, where a single contract between the same parties includes elements related to data and other elements, the unfairness control would only apply to the terms that concern either a) data access and use or b) liability and remedies for the breach of data related obligations. Such contractual terms could be, for example, about data access modalities, purposes for its use, how the data is protected, as well as remedies and liability for breaches of such terms. Such terms can be commonly found in contracts about, for example, sale of a connected product, logistics, advertising, loans, investment consulting, management advice, cloud computing services etc. For example, in a contract for a bank loan to a business, where data sharing is needed for the fulfilment of the agreement, Chapter IV of the Data Act applies to the clauses related to the sharing of the client’s data with the bank. This means that Chapter IV does not apply to contractual terms that have another purpose, for instance the terms that deal with product guarantees, the characteristics or technicalities of the provision of cloud services, the insurance conditions, etc. Sometimes though, there are parts of the agreement (such as a general section on remedies or the terms dealing with the duration of the contract) that apply to all contractual obligations. Chapter IV of the Data Act applies to such clauses to the extent that data access and use or data-related obligations are concerned. For example, the unfairness control would apply to the general terms and conditions about liability and remedies, if these cover breach of data related obligations. However, the unfairness control provided by Article 13 would not apply to the clauses regulating the terms for the bank loan, as explained above.