Article 13

Unfair contractual terms unilaterally imposed on a micro, small or medium-sized enterprise

1. A contractual term, concerning the access to and use of data or the liability and remedies for the breach or the termination of data related obligations which has been unilaterally imposed by an enterprise on a micro, small or medium-sized enterprise as defined in Article 2 of the Annex to Recommendation 2003/361/EC shall not be binding on the latter enterprise if it is unfair.

2. A contractual term is unfair if it is of such a nature that its use grossly deviates from good commercial practice in data access and use, contrary to good faith and fair dealing.

3. A contractual term is unfair for the purposes of this Article if its object or effect is to:

(a) exclude or limit the liability of the party that unilaterally imposed the term for intentional acts or gross negligence;

(b) exclude the remedies available to the party upon whom the term has been unilaterally imposed in case of non-performance of contractual obligations or the liability of the party that unilaterally imposed the term in case of breach of those obligations;

(c) give the party that unilaterally imposed the term the exclusive right to determine whether the data supplied are in conformity with the contract or to interpret any term of the contract.

4. A contractual term is presumed unfair for the purposes of this Article if its object or effect is to:

(a) inappropriately limit the remedies in case of non-performance of contractual obligations or the liability in case of breach of those obligations;

(b) allow the party that unilaterally imposed the term to access and use data of the other contracting party in a manner that is significantly detrimental to the legitimate interests of the other contracting party;

(c) prevent the party upon whom the term has been unilaterally imposed from using the data contributed or generated by that party during the period of the contract, or to limit the use of such data to the extent that that party is not entitled to use, capture, access or control such data or exploit the value of such data in a proportionate manner;

(d) prevent the party upon whom the term has been unilaterally imposed from obtaining a copy of the data contributed or generated by that party during the period of the contract or within a reasonable period after the termination thereof;

(e) enable the party that unilaterally imposed the term to terminate the contract with an unreasonably short notice, taking into consideration the reasonable possibilities of the other contracting party to switch to an alternative and comparable service and the financial detriment caused by such termination, except where there are serious grounds for doing so.

5. A contractual term shall be considered to be unilaterally imposed within the meaning of this Article if it has been supplied by one contracting party and the other contracting party has not been able to influence its content despite an attempt to negotiate it. The contracting party that supplied a contractual term bears the burden of proving that that term has not been unilaterally imposed.

6. Where the unfair contractual term is severable from the remaining terms of the contract, those remaining terms shall remain binding.

7. This Article does not apply to contractual terms defining the main subject matter of the contract or to contractual terms determining the price to be paid.

8. The parties to a contract covered by paragraph 1 may not exclude the application of this Article, derogate from it, or vary its effects.