In Part 4 of our 'Deep Dive' series, we explore a central focus of the Act: the obligations aimed at preventing organisations from implementing unfair contractual terms in B2B data sharing arrangements.
In Part 3, we looked at the data switching and interoperability provisions which may apply to in-scope data processing service providers under the Data Act (Act).
The Act achieves this objective by introducing "black" and "grey" lists of unfair contractual terms in B2B contracts – a first for European legislation and an approach which mirrors existing European Union (EU) consumer laws.
General Rule
As a general rule, any unilaterally imposed term imposed by a party regarding: (i) access to and the use of data; or (ii) liability and remedies for breach or the termination of data-related obligations, will not be binding on the other party if it is unfair (Article 13(1) of the Act):
- A contractual term is considered unilaterally imposed within the meaning of the Act if it has been drafted by one contracting party and the other contracting party has not been able to influence its content.
- A contractual term is unfair if it 'grossly deviates from good commercial practice' and is 'contrary to good faith and fair dealing' (Article 13(3) of the Act).
Where a term is found to be unilaterally imposed by one party and unfair, it will not be binding on the party upon whom it was unilaterally imposed; however, the remainder of the contract can remain in force if it can continue without the unfair term (i.e. the unfair term is severable from the contract).
An exception to this general rule is where a term is required by EU or Member State law (in which case, it will not be unfair) (Article 13(2) of the Act). Article 13 of the Act will also not apply to contractual terms that define the primary subject matter of the contract and the adequacy of the price paid for the data or data-related services.
Automatically Unfair Terms: Blacklist
Article 13(4) of the Act identifies terms that will automatically be considered unfair and therefore void under the Act. Blacklisted terms include those which have the object or effect of:
- excluding or limiting the liability of the party that unilaterally imposed the term for intentional acts or gross negligence;
- excluding the remedies available to a party on whom an unfair term has been unilaterally imposed in the case of non-performance of contractual obligations or the liability of the party that unilaterally imposed the term in the case of a breach of those obligations; or
- giving the party that unilaterally imposed the term the exclusive right to determine whether the data supplied conform with the contract or to interpret any contractual term.
Presumed Unfair Terms: Grey List
Article 13(5) of the Act identifies terms that are presumed unfair where they are unilaterally imposed by one party if their object or effect is to:
- inappropriately limit remedies in the case of non-performance of contractual obligations or liability in the case of breach of those obligations;
- allow access and use of data in a way that harms a party's legitimate interests, especially if data is commercially sensitive or protected by trade secrets or IP rights;
- prevent a party from using their data which is provided or generated during the period of the contract, or to limit the use of such data to the extent that a party is not entitled to use, capture, access or control such data or exploit the value of such data in an adequate manner;
- prevent termination of the agreement with reasonable notice;
- prevent a party from obtaining a copy of the data provided or generated by that party during the period of the contract or within a reasonable period after the termination;
- allow a party to terminate the contract at unreasonably short notice, except where there are serious grounds for doing so (consideration should be taken of the possibility of the non-imposing party switching to an alternative and comparable service and the financial detriment caused by such termination); or
- enable unilateral price changes or amendments to any substantive conditions related to the nature, format, quality or quantity of the data, where there is no valid reason nor a right of the non-imposing party to terminate the contract in the event of such a change.
For grey-listed terms, these terms are presumed unfair unless the party that unilaterally imposed them can rebut that presumption.
Implications for Businesses
The Act has introduced new rules for businesses that will affect how contracts are drafted from 12 September 2025, particularly in how clauses relating to data are drafted. We have set out below some key takeaways for businesses:
- Businesses and legal teams need to review template contract clauses relating to the use of data, related liability and termination rights. Businesses should identify any clauses that could be deemed as unfair under the Act and update that agreement accordingly.
- For SMEs, while Article 13 of the Act provides some protection against unfair terms by larger businesses, it should be noted that negotiation of a particular term will generally serve to deem that contractual term as fair. Where terms are genuinely negotiated, they cannot be considered as unilaterally imposed and thus fall outside the unfairness test.
- Larger businesses need to assess the fairness of clauses in a context-specific manner, for example, the imposing party needs to be mindful of clauses that could be significantly detrimental to the legitimate interests of a contracting party, in particular when such data relates to commercially sensitive data or are protected by trade secrets or intellectual property rights. Something that may seem fair on its face may be unfair if the data is commercially sensitive to the party on which the clause is being imposed.
- While unfair terms may not be unenforceable, severability will ensure, where possible, that the unfair term can be removed without affecting the rest of the contract, and the remaining provisions remain valid.
- Businesses will need to review and update applicable contracts that are due to expire at least ten years from 11 January 2023. While there will be more time to review these agreements, businesses should be mindful that a review is still required.
Conclusion
These rules apply to contracts concluded after 12 September 2025. For contracts that are either of (i) indefinite duration, or (ii) due to expire at least ten years from 11 January 2023, the adaptations must be complete by 2027. Businesses must prepare accordingly to ensure compliance with the new rules relating to unfair terms under the Act. The Commission has released voluntary Standard Contractual Clauses (SCCs) and Model Contract Terms (MCTs), which we explored in Parts 2 and 3 of this series. These model clauses support compliance and offer a template for implementing these new rules. The Act's provisions on unfair contractual terms reflect a broader shift toward preventing vendor lock-in, ethical data governance and fair competition.
Contributed by Aoife Keenan and Caroline Keaveny
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
