Last update: 16/03/2023
These General Terms and Conditions of Service (hereinafter “TOS” or “Agreement“) represent the conditions under which Count26 S.r.l., registered with the Companies Register of Rome with Fiscal Code and VAT number 15928351004 and registered office in Via Torre di Messer Paoli 1, 00047 Marino (RM) Italy (hereinafter “We” or “Count26“), provides its services (hereinafter the “Services“) to users who register as a Creator (hereinafter the “User” or “Creator“) through the web application Call for creators HUUNO (hereinafter the “App Call for creators HUUNO“).
For the purposes of these TOS, Count26 and the User/Creator will be individually defined as the “Party” and collectively as the “Parties“.
0. TOS changes
Count26 reserves the right to modify these TOS at any time. In this case, it will notify the User by using the email address provided by the User at the time of registration or on the occasion of the first access to the site following the modification, and will ask the User to accept the new version of the TOS. However, it is understood that the modifications will be deemed accepted by the User unless the User sends a written communication to Count26 – according to the modalities, also temporal, that will be communicated to the User – containing the expression of the User’s will not to accept the aforementioned modifications and to terminate the contractual relationship in force between the Parties.
1. Registration and conclusion of the Agreement.
1.1 To access Count26’s Services, the Creator must read and accept the TOS, specifically approving the so-called unfair clauses referred to at the bottom. The User proceeds with the registration process, using their active account on one of the social networks indicated on the login page.
1.2 The TOS shall be effective from the moment the Creator accepts them and shall govern the relationship with Count26 for the entire duration of the Agreement.
1.3 The Creator undertakes to keep their access credentials to the App Call for creators HUUNO (email and temporary access link) confidential and to immediately report to Count26 any loss of exclusive control over them, acknowledging that, failing such notification, they will be held responsible for any actions and conduct carried out using such credentials.
1.4 Count26 undertakes to provide the Creator with the service offered through the App Call for creators HUUNO, i.e., the service of collecting applications sent by Users in response to advertisements (“Calls“) from communication agencies and/or companies and/or entities interested in proposing sponsorship contracts, influencer marketing, etc., and the related communication to the same entities of the Users deemed most suitable (“Recruiting Service“).
2. Agreement Duration and Termination
2.1 The Agreement is deemed to be of indefinite duration, subject to any termination by one of the parties, carried out under the terms of the subsequent Article 2.2, as well as under the terms of the subsequent Article 3.4.4.
2.2 The Creator and Count26 may terminate the Agreement at any time by giving notice to the other party; Count26 may terminate by giving notice to the Creator at the email address provided by the latter at the time of registration, and the Creator by sending a communication via email to firstname.lastname@example.org. The termination will be effective 7 (seven) days after the communication to the other party.
3. Personal Data and appointment of Count26 as Data Controller
3.1 The Creator undertakes to provide Count26 with correct and truthful information at the time of registration, and to keep it up to date for the entire duration of the Agreement. Any damage or loss resulting from the failure to update the data (for example, the failure to receive communications) shall not be attributable to Count26.
3.4 Appointment of Count26 as Data Controller
3.4.1 – Premises
Considering that: (i) Count26 provides Creators with some services through the Insight App and the Call for creators HUUNO App that involve the processing of personal data (“Personal Data“) of third-party individuals (“Data Subjects“) (typically personal data of the Creator’s followers, such as identifying information, personal image, and any data contained in the Creator’s post comments); (ii) the Creator, under Legislative Decree No. 196 of 30 June 2003, “Personal Data Protection Code,” and subsequent amendments and integrations (“Code“), and Article 24 of EU Regulation 679/2016 and subsequent amendments and integrations (“Regulation“) (Code and Regulation jointly defined as “Legislation“), is the data controller of Personal Data (the “Data Controller” or “Controller“) that will be processed by Count26 to provide the Services; (iii) the Creator, under Article 28(1) of the Regulation, recognizes that Count26 has the operational autonomy, experience, capabilities, and reliability necessary to provide sufficient and suitable guarantees to implement adequate technical and organizational measures so that the processing (“Data Processing” or “Processing“) complies with the requirements of the currently applicable Legislation, including the security profile.
3.4.2 – Scope
By agreeing to these TOS, the Creator appoints Count26 as the external data processor under Articles 28 and 29 of the Regulation (“Data Processor” or “Processor“) in relation to the Processing operations that Count26 will carry out in the execution of the Services, which will include: collection, recording, storage, organization, adaptation, modification, extraction, consultation, use, comparison or interconnection, limitation, deletion, destruction, communication.
For the purposes of this article, the pairs of terms “Creator“/”Controller” and “Count26“/”Data Processor” (and similar expressions) are to be understood as synonymous.
3.4.3 – Rights and Obligations of the Parties
18.104.22.168 Count26 undertakes to provide the Services in compliance with the following instructions (“Instructions“):
(a) ensure that the Personal Data Processing operations related to the execution of the Services are carried out in full compliance with the instructions provided by the User/Controller, the Regulations, and any provisions contained therein;
(b) designate in writing any authorized persons (“Authorized Processors” ) or designated persons (“Designated Processors“), pursuant to Article 2-quaterdecies of the Code and Article 29 of the Regulation, any employees and/or collaborators who assist the Processor in providing the Services, providing instructions for the performance of their duties in compliance with the Instructions;
(c) monitor the activities of the Authorized Processors and Designated Processors;
(d) adopt adequate technical and organizational measures so that the Processing complies with the requirements of the Legislation and guarantees the protection of the Data Subjects’ rights, as well as verifying the constant adequacy of the measures in place to minimize the risks of loss and accidental destruction of Personal Data, unauthorized access, unauthorized Processing, or Processing that is not compliant with the purposes of the collection;
(e) immediately notify the Creator in the event of inspections, requests for information and/or documentation by the Privacy Guarantor and/or other competent authorities, providing, where appropriate, the support requested;
(f) cooperate with the Creator, with adequate technical and organizational measures, to enable the latter to comply with requests for the exercise of the Data Subjects’ rights under Chapter III of the Regulation;
(g) Report to the Creator, as soon as possible and in any case no later than 48 (forty-eight) hours from the moment in which you became aware of a violation of the security of the Personal Data subject to Processing (“Data Breach“), and, in such case, provide all the information requested by the Creator.
22.214.171.124 It is expressly agreed between the Parties that it is the Creator’s responsibility and exclusive duty to make public, in the most appropriate manner, including, by way of example and not exhaustively, by inserting it in the register of processing activities referred to in Article 30 of the Regulation and in the information required by Article 13 of the Regulation, the appointment of Count26 as “External Data Processor”. The Creator also declares and guarantees that the Personal Data that will be processed by Count26 in carrying out the Instructions have been collected in full compliance with the Regulations and, in particular, that the Data Subjects have received the required information pursuant to Article 13 of the Regulation, to the exclusion of any and all liability of Count26 in this regard.
126.96.36.199 It is also understood between the Parties that, in case of doubts about the interpretation of the Instructions, the Processor will send a written communication to the Data Controller to request clarifications (“Request for Clarification“) and the Data Controller will respond to the request as soon as possible using the same methods (“Response to Request for Clarification“). Without prejudice to the right of withdrawal under Article 3.4.4, the Parties declare and expressly agree that the Response to the Request for Clarification will be effective 7 (seven) days after its receipt.
188.8.131.52 It is also understood between the Parties that, in the event of a change of one or more of the Instructions by the Data Controller, the latter will send a communication (“Change Communication“) to the Processor, in accordance with the methods indicated in the following Article 7.4. Without prejudice to the right of withdrawal under Article 3.4.4, the Parties declare and expressly agree that the Change Communication will be effective 7 (seven) days after its receipt.
184.108.40.206 Notwithstanding the right of withdrawal pursuant to Article 3.4.4, the Data Processor retains the right to refuse to carry out instructions contra legem. In the event of instructions contra legem, the Data Processor shall send a written communication (“Communication of Instructions Contra Legem“) to the Data Controller, indicating the reasons why it believes the instructions to be contra legem.
220.127.116.11 The Data Controller declares its right to carry out periodic checks (“Audits“) to ensure compliance with the instructions and applicable regulations, including the security profile. To this end, the Data Controller shall send a written communication to the Data Processor, indicating the methods by which the Audit will take place, with a minimum notice period of 15 (fifteen) days. The Data Controller shall carry out the Audit with the assistance of its own employees, collaborators, and appointees, who shall operate under its absolute and exclusive responsibility. It is expressly understood between the Parties that any and all costs, expenses, compensation related to the Audit shall be borne exclusively by the Data Controller. The Data Processor declares its right to carry out Audits to ensure compliance with the obligations set forth in sub art. 18.104.22.168, including the security profile. To this end, the Data Processor shall send a written communication to the Data Controller, in accordance with the methods indicated in the following art. 7.4, indicating the methods by which the Audit will take place, with a minimum notice period of 15 (fifteen) days. The Data Processor shall carry out the Audit with the assistance of its own employees, collaborators, and appointees, who shall operate under its absolute and exclusive responsibility. It is expressly understood between the Parties that any and all costs, expenses, compensation related to the Audit shall be borne exclusively by the Data Processor.
22.214.171.124 Pursuant to art. 28.2 of the Regulation, the Data Controller hereby expressly authorizes the Data Processor to use other data processors (“Subprocessors“), provided that they fall within the following categories: (i) operators of email services; (ii) IT consultants and/or consulting companies for maintenance and/or adaptation of the Data Processor’s information systems; (iii) providers of platform-as-a-service and/or infrastructure-as-a-service IT services.
3.4.4 – Duration and Termination of the Data Processor
126.96.36.199 The Parties declare and agree that:
(a) in the event of termination, for any reason, of the effects of the Agreement, this appointment of Count26 as an external Data Processor will also cease to be effective;
(b) in the event that Count26 exercises the right of termination in the specific cases indicated in art. 188.8.131.52, except for the conciliation procedure referred to in art. 184.108.40.206, both the Agreement and the appointment as Data Processor will become ineffective;
220.127.116.11 The Parties understand that the Data Processor may exercise the right of termination in the following cases:
(a) Receipt of a Communication of Modification;
(b) Receipt of a Response to the Request for Clarification;
(c) Request for execution of Instructions Against the Law.
In cases (a) and (b), the Data Processor may exercise the right of termination within 7 (seven) days from the receipt of the respective communications/responses. The Data Processor may exercise the right of termination by sending a written communication (“Termination Communication”) to the Data Controller, and this Termination Communication will take effect 15 (fifteen) days after its receipt. It is expressly understood between the Parties that during the aforementioned periods of 7 (seven) and 15 (fifteen) days, the Parties: (i) will remain bound by what was previously agreed upon in the case of letter (a); (ii) will be limited to preserving Personal Data according to the methods adopted up to that point in the case of letter (b).
In the case of letter (c) above, the Data Processor may exercise the right of termination at any time, and 15 (fifteen) days after the Data Controller’s receipt of the Communication of Instructions Against the Law. The Termination Communication will take effect 15 (fifteen) days after its receipt. It is understood between the Parties that from the date of sending the Communication of Instructions Against the Law until the expiration of the aforementioned 15 (fifteen) days, the Data Processor shall have the right not to execute the instructions deemed against the law, excluding any and all liability.
18.104.22.168 The Parties declare and agree that, in the event that the Data Processor exercises the right of termination as set out above, they will act in good faith to find a new agreement within 30 (thirty) days from the effectiveness of the Termination Communication. In the event of no agreement being reached within the aforementioned period, both the Agreement and the appointment as Data Processor will become ineffective.
3.4.5 – Limitation of Liability
The Data Controller acknowledges and agrees that the Data Processor’s liability is in any case limited to failures resulting exclusively from willful misconduct or gross negligence.
4. Intellectual property
4.1 The Creator acknowledges that all intellectual property rights in the software underlying the App Call for creators HUUNO (“Software”), provided for by articles 64-bis ss. of Law no. 633 of April 22, 1941, as well as those relating to graphic motifs, interfaces, and any distinctive sign, are exclusively owned by Count26, and expressly undertakes not to reproduce, modify, alter, remove, move, transfer, license, or distribute them to third parties.
4.2 Subject to compliance with these TOS, Count26 grants the Creator a personal, free, non-exclusive, and non-transferable license to use the App Call for creators HUUNO solely for the purpose of accessing the services provided by Count26. This license will be limited to the effectiveness of the Agreement.
4.3 Without prejudice to the provisions set forth in Article 4.2 above, Count26 reserves all rights not expressly granted under this license. By way of example and not limitation, therefore, the Creator may not, directly or indirectly: a) distribute, license, sublicense, rent, lease, sell, or transfer the Software; b) reverse engineer, decompile, disassemble, or attempt to discover the source code of the Software; c) modify, alter or create derivative works from the Software; d) remove, alter or obscure any copyright, trademark, or other intellectual or industrial property notices on the Software; e) use third-party software to modify the Software; f) provide, host, facilitate, connect to or use private servers, emulators, or other tools that allow the Software to be used in ways not intended by Count26; g) distribute and/or make available to the public the Software and/or its data; h) extract data and/or information obtained through the Call for creators HUUNO App in an automated manner.
4.4 By signing this Agreement, the Creator grants Count26: (a) a perpetual and non-exclusive license to use, on its websites, pages, social media groups and profiles, as well as in promotional and/or advertising campaigns of Count26 on newspapers, television, radio, internet, and/or any other offline and/or online communication channels, aimed at promoting Count26 and/or its services, the following elements: the corporate name, trademark, any other distinctive signs of the Creator, reviews/feedback related to the Creator; (b) authorization to communicate, within the Business Service, the elements indicated in the previous letter (a).
5. Guarantees and limitations of liability
5.1 Count26 will make every reasonable effort to ensure that the Creator has continuous and uninterrupted access to the content and services offered through the App Call for creators HUUNO, but it cannot be held responsible if one or more of the services provided or the content made available to the Creator are temporarily inaccessible. By way of example, Count26 is not responsible for the interruption of services resulting from force majeure or for the faulty operation of services resulting from the improper functioning of telephone lines, electrical and global and/or national networks.
5.2 In addition, within the limits provided for by Article 1229 of the Civil Code, Count26 cannot be held liable for direct or indirect damages suffered by the Creator or third parties as a consequence of the use of the App Call for creators HUUNO.
5.3 Count26 assumes no responsibility with regard to the accuracy of data, news, information and, in general, the content provided by and through the App Call for creators HUUNO and the use that the Creator makes of such data and content. The Creator also expressly undertakes to use content (such as, for example, photos, videos, trademarks, etc.) for which it has all intellectual, industrial and/or usage rights. In this regard, the Parties acknowledge that the Creator is, and will be, the sole and exclusive responsible for the use of the data, news, information and content provided by and through the App Call for creators HUUNO, indemnifying Count26 from any and all liability in this regard, intervening and resisting, if necessary, in any related legal proceedings.
6. Suspension of Services and Termination of the Contract
6.1 The Creator acknowledges and agrees that Count26, in case of violation of these TOS, may, at its sole discretion, temporarily suspend access to the individual Service and/or the Call for creators HUUNO App, giving notice to the email address communicated by the Creator during registration, without any obligation to provide prior notice.
6.2 Count26 may also terminate the Contract in case of serious violations of the TOS by the Creator, giving notice to the email address communicated by the Creator during registration, without any obligation to provide prior notice.
6.3 In none of the cases indicated in this article shall Count26 be liable for any damages resulting from the suspension or interruption of the Services.
7.1 This Agreement constitutes the entire understanding between the Parties and supersedes any prior agreement between them concerning the same subject matter. Any addition or amendment to the provisions hereof shall be made in writing and signed by the Parties.
7.2 If any provision of this Agreement is held to be invalid or unenforceable under Italian law, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining provisions of this Agreement as to each Party.
7.3 Count26’s failure to exercise any rights or privileges under these Terms shall not constitute a waiver of such rights or privileges, and shall be deemed an act of tolerance.
7.4 Any communication between the Parties regarding this Agreement shall be made in writing and shall be deemed effectively and validly executed if received by the Creator at the email address provided during registration and by Count26 at the email address indicated in the previous article 2.2. Communications shall be effective upon receipt. Each Party shall promptly notify the other of any change in email addresses, provided that, in case of failure to rectify, communications sent to the previous email addresses shall remain fully valid and effective.
8. Applicable law and jurisdiction
8.1 This Agreement is subject to Italian law.
8.2 Any disputes arising between the Parties regarding this Agreement, including disputes relating to the interpretation, performance and validity thereof, shall be exclusively submitted to the jurisdiction of the Court of Rome.
Pursuant to Articles 1341 and 1342 of the Italian Civil Code, the Creator declares that he/she has carefully read and expressly approves the following clauses: Article 0 (Amendment of the TOS), Article 3.1 (Count26’s exclusion of liability for failure to update data), Article 22.214.171.124 (Creator’s representations and warranties regarding Personal Data communicated to Count26. Count26’s exclusion of liability), Article 126.96.36.199 (Termination by the Processor. Processor’s exclusion of liability for failure to execute unlawful Instructions), Article 4.4 (License in favor of Count26), Article 5 (Warranties and Limitations of Liability. Indemnification), Article 6 (Suspension of Services and Termination of the Agreement. Count26’s exclusion of liability), Article 7.3 (tolerance clause), Article 8.2 (exclusive jurisdiction).