USER AGREEMENT

1. PARTIES AND SUBJECT MATTER

This User Agreement (the “Agreement”) is executed between on the one hand Paksam Fotoğraf ve Bilişim Teknolojileri Ticaret Anonim Şirketi (“Platform”) residing at Valikonağı Cad. Konak Apt.  67/4 Nişantaşı 34371 İstanbul Turkey and on the other hand the real person becoming member via Website or Application (“Member) in order to set out the terms and conditions regarding the use of provided Services and to establish the respective rights and obligations of the Parties 

The Member agrees and declares to have read the entire Agreement, to have understood its content in full and to approve all of its provisions.

2. DEFINITIONS

Service(s):All the other applications related to the content services etc. made available by the “Platform” on the Website, via Application and/or on other media in order to enable the Members to execute their transactions as specified in this Agreement and detailed on the Website and Application 

Medium/ Media: Any virtual environment, where the Services shall be provided such as Website, Application etc.

User(s):The Members and visitors whose membership procedures are not yet completed, visiting the Services page on any Media

Member(s):Real persons of 18 years or older age, accessing the Media online and having a paid or free Membership to make use of the Services and whose membership is approved by the Platform.

Website:means the Website or digital platform that can be accessed through the domain name www.photier.com and sub-domain names, where the Platform provides the Services with the scope specified herein

ApplicationThe software that the members need to download to their mobile phones from the digital source conforming with the mobile phone software in order to make use of the Services

Event:Any organization that is occasional and meaningful for the people such as engagement, wedding, graduation, birthday celebration etc. that can be attended upon invitation and/or against a fee.

Event Page:The website where the photos taken at the events attended by the Members are presented on the respective Media

Photographer  The contracted person(s) of the Platform that take the photos of the event participants and Members and upload such to the Platform

PhotographAny images taken by the Photographer with the consent of the Members by means of a camera

Member Page:Member-exclusive web page where the member may carry out certain transactions in order to make use of various applications, Competitions and Services available on the Website and enter its personal details, which can be accessed by means of a username and password specified by the Member

3. RIGHTS AND OBLIGATIONS

3.1In order to gain a member status, the User, who is older than 18 years and willing to be a member, is required to approve the Membership Agreement available on the Website; to complete it with true and authentic information in line with the information requested on the membership form, to upload a photograph of himself/herself; or if the User has a Facebook account, to provide the personal data via this channel and the membership application of the User must be evaluated and approved by the Platform. The Membership status becomes effective when the approval procedure is completed and notified to the user, and this way, the Member becomes eligible to rights and undertakes the obligations set out somewhere else in this Agreement and applicable parts of the Web site. The User and the Member shall be personally liable for all damages that might arise due to provision of misinformation that are not meeting the membership requirements; due to not granted membership, due to delivery of photos to wrong persons, due to not refunded fees or other circumstances. 

3.2Membership rights and obligations are exclusively personal to the person whose membership is approved only and the Member may in no event assign or transfer its such rights and obligations to any third party in part or in full. In case of a dispute regarding whom the membership rights and obligations belong to and if the said individuals assert claims and rights from the Platform in this respect, the Platform shall be entitled to make identity checks or individual interviews, to carry out any investigation necessary to arrive at a decision; and shall reach a final decision so as to accept only one individual’s ownership of the respective account’s rights and obligations and take actions accordingly. In such a case the Platform shall not be liable for the membership created and/or for the Photograph taken illegally, the sole responsibility towards the real beneficiary shall belong to the person, who created the account or uploaded the Photograph.

3.3The User agrees and represents that in case he is willing to launch his membership and/or purchasing process over the Website or Application he shall be obliged to fulfill all necessary legal obligations and procedures, including those ones set out in the Website; that the Platform shall be under no obligation in connection with the failure to perform the said liabilities and procedures. The User/Member shall be liable for all losses that may be suffered by the Platform in connection with his payment for the use of Services and moreover he shall pay all losses that may arise from potential claims from Banks and cardholders and that are attributable to payment systems upon first request and along with all accessories.  

3.4.The Member, agrees and undertakes that such information, contents and ads to be uploaded by itself to the Media shall be true and lawful, and not be unlawful or unethical or shall not be intended to defame, disparage, discredit, libel, swear, threaten or harass; that the publication of such information and contents shall not cause any breach of the law in line with the applicable legislation; that it shall not cause the violation of rights; that all rights and powers required to post, publish, offer for sale and sell such goods and services associated with the said contents are vested with him only. Legal-penal liability in any otherwise transaction and act shall be borne by him. 

3.5Furthermore the Member irrevocably agrees, represents and undertakes that it shall have transferred and assigned all financial rights related to the Photograph it shall appear taken in the Events and/or on street in any location and any and all visual contents that it shall provide (processing, promulgating, reproduction and public transmission) to the Platform without any restriction by geographical field, time and channel or media and that he shall immediately carry out all formalities in connection with that assignment free of charge. 

3.6The right to process any and all personal data that the Member shares over the membership account shall belong to the Platform provided that all permissions shall have been obtained. However, upon a request from the competent authorities pursuant to the applicable legislation, he shall share the membership details available with it with the relevant competent authorities. Such information may be disclosed to any party to any potential dispute that may arise as between the members and such disclosure shall be strictly limited to the purpose of allowing other users to exercise their statutory rights. 

3.7Certain user name and password details that the member shall need to have access to the Membership Page and to carry out certain transactions on the Media shall be created by the Member and the security and confidentiality of the said details shall be his full liability. The Member agrees, represents and undertakes that any transaction executed by using his user name and password shall be deemed to have been executed by him, that the liability arising from such transactions shall be borne by him in advance; that he shall not raise any objection and/ or plea that such transactions have not been committed by him and/ or he shall not avoid the fulfillment of his obligations based on such plea or objection.

3.8.The Platform is the sole owner of all contents posted and available on the Media and it shall not permit or consent to any unlawful use thereof, including, in particular, any and all uses mentioned below, and the acquisition, reproduction, process and use of the contents or the insertion of any link to such contents.

• The use of the Website by the Member or a third party to create, control, update or change a database, record or guideline that belongs to the Buyer or a third party;
• The use of the Website in its entirety or any part thereof for violation, modification or reverse engineering purposes;
• Execution of transactions by using wrong information or the details of another user; creation of fake user accounts by providing wrong or misleading personal data, place of residence, e-mail address, contact, payment or account details, and the use of Website over these accounts in an unlawful manner and beyond the use of terms hereof or membership agreement or annexes or their scope; the unauthorized use of any other user’s account; creating accounts or becoming a party to transactions by using a false name or by pretending to be someone else; 
• The use of the web site for any unlawful purpose or for fraudulent transactions,
• The use, reproduction, change, transmission or replacement of the Website content or the contents of any third party in its entirety or any part thereof without any permission as the same may be under the protection of law or may be copyrighted, including personal confidentiality or broadcast/ publication rights;
• Manipulation of the price of any transaction or intervention with the transactions of other users;
• Use of comments, reply or rating features for any reason beyond their intended purpose or purposes beyond Website (publication of details of a competition on the Website or any Member comments outside the Website etc)
• Distribution of chain letters or spam;
• Transmission of any virus, malware or other damaging technology for the Website, its database or any content on the Website;
• * Collection of any information of Users or Members, like their e-mail addresses, without any permission;
• Attempts to have access to the Website in a manner that poses unreasonably or disproportionally large loads on the communications and technical systems designated by the Website or that somehow blocks, ceases, disrupts, spoils or modifies them in any manner;
• Use of “screen scraping” software or systems such as automatic programs, robots, web crawlers, spiders, data mining or data crawling on the Website without the Platform’s prior written consent, and the unauthorized reproduction, publication, broadcast or use of any content on the Website this way; unauthorized use of Website and any contents on it without permission and beyond such limits of use as defined herein is unlawful, and the Platform reserves its right to immediately suspend or cancel the membership and to institute any legal proceeding or to make any claim without any fee refund. 

3.9The Platform may use store or disclose such “Membership/ Personal” details declared by the Company in line with the Confidentiality Policy subject to the permission obtained by it for statistical evaluations, advertisement, marketing and other commercial communication operations as designated by it and for the performance of this Agreement and its liabilities hereunder or the execution of the application for running the Website. The Member agrees and represents that he consents the use and storage by the Platform of his details this way by means of reproducing the permitted communication text. The Platform shall adopt any and all measures necessary to store said information in a safe manner. The Member shall have the right to change or delete his personal data at any time at his sole discretion.

3.10The Member shall log in the Website over his account by using his password and shall be able to visit the Event Pages, buy Photographs and make use of other Services. Notwithstanding the foregoing, he shall fulfill all necessary terms and conditions, including the payment of the service fee, in order to maintain his membership status and to make use of the Services. In case these terms and conditions are not fulfilled or in any other necessary circumstance that the Platform may designate, the membership may be suspended or cancelled. The Platform shall be entitled to prevent the grant of membership to the respective person, to suspend or cancel the respective person’s membership, to cancel a purchase and to take any action it deems necessary. 

3.11The connection of the Members to the Media and the time/quality of Photograph downloads may vary depending on their connection speeds. This may effect the Member’s performance in using the Services, but the Platform under no circumstance shall be liable in this regard. Fees and additional costs arising from any connection for any Member’s device shall be borne by the Member. 

3.12The terms and conditions for the use of Services shall be regularly announced on the Website and such terms and conditions may be changed when deemed necessary by being published on the Website. The Member, throughout their Membership relation shall be obliged to follow and regard such rules/terms via Website.

3.13In order to make use of the Service and for the delivery of the purchased Photographs the Membership must be active. The Membership may be cancelled at any time by means of an e-mail titled “Termination of Membership” to be sent through the Membership Page or to the contact address available on the Website. However, the cancellation shall become effective as of the first month following the termination subject to the Platform’s approval. If in the meantime the request for removal from the communication list is submitted, within 3 Business Days, the communications with announcements and sales contents as well shall be announced separately. With respect to the purchased Services, any transmissions compulsory as per the legislation are exempt from this provision.

3.14     Since the Service is based on face recognition technology, the faces of Members or non-members may appear on the same frame during the Photo shoot of the Members and therefore might be shared with other Members or published on Media without their consents. If the Member or such person thinks that such Photos are published without their consent, they shall notify the situation promptly to the Platform and request the remedy of the situation. Platform, under no circumstance, shall be liable for such a circumstance

3.15    Members can upload photos and create events by purchasing Photi points with packages offered on the Platform. Members are allowed to balance management, admin panels and financial transactions by purchasing packages and organizing events.

3.16    Members are authorized to see the statistical information about the events they create, the photos they upload and the number of people participating in their activities. In addition, Members who purchase packages can add logo to their event photos, make them public or make private events or pages.

3.17    Members have authority to manage, label Users, delete photos and view the participating Users.

3.18    Members can see the list of Users participating in their events. Members can access the below information of the Users:

• Profile photo
• Names and first letters of surnames
• Photos assigned to Users
• Activities in which users participate (among which activities a User has participated)
• Purchase orders placed by Users (among those events created by Members, photo orders purchased by this User)
• Photos purchased by Users and order information of Users

3.19    Members may send notifications to their Users participating in their events.

3.20     The Parties agree, declare and undertake that they shall take all necessary measures for the storage of personal data shared by the other party as required by this Agreement and will not use this data for any purpose other than for the purposes of providing the Service subject to the Agreement and will not share such data with third parties and / or persons. . The Parties shall also take all necessary physical, technical and administrative measures to ensure the proper level of security in order to prevent unlawful processing of personal data, unlawful access to personal data and to protect personal data in accordance with the Law on Protection of Personal Data No. 6698 and related legislation. and is responsible for taking these measures. The parties are obliged to make any claim for compensation, administrative fine or any claims for receivables that may be encountered due to non-fulfillment of this obligation since the other party. The Parties shall demand full and immediate compensation from the other party if the said receivable arising from the other party due to its breach of this article is obliged to pay compensation and / or administrative fine. The Parties shall be obliged not to disclose the personal data shared with it under this Agreement as confidential information and to disclose it indefinitely. In the event that this Agreement terminates in any way, the Parties shall transfer all personal data processed on behalf of the other party to the other party and delete their original and backup data, except in cases requiring legal obligation. The Parties shall inform the other Party as soon as possible if any personal data shared with them is obtained by others through unlawful means.

4. INTELLECTUAL PROPERTY RIGHTS

The Member may not resell, share, distribute, exhibit, reproduce the services provided over the Website, or the Platform details or the Platform’s copyrighted works, the visuals of other Members provided on the Media nor may it allow other parties to have access to or to use them; otherwise, he shall be responsible to indemnify and cover any and all other liabilities including but not limited to court expenses and attorney’s fee along with such amount of compensation asked from the Platform on account of the losses suffered by third parties, including but not limited to, the licensors.

The rights of the Platform for all of its assets, real and personal rights, commercial data and know-how including any tangible and intellectual property rights it possess through the software it shall provide for all the Services, commercial knowledge, copyrighted works, Platform’s trademarks, trade dressing or Website are reserved and may not be used without permission.

5. AMENDMENTS AND TERMINATION

The Platform may unilaterally amend this Agreement at its sole discretion by publishing it on the Media at any time acceptable to it. Amended provisions of this Agreement shall become effective on the date of their publication while the remaining provisions shall remain fully in force and continue to yield the applicable consequences. This Agreement may not be amended by the unilateral statement of the Member; however, the Member may exercise his termination right at any time after the amendment of agreement in line with the rules for termination. 

The Platform may cancel the Membership and may terminate this Agreement at any time with immediate effect without giving forth any just cause and subject to its rights set out herein. 

6. EFFECTS OF THE FORCE MAJEUR

In all circumstances that are considered to be force major events legally, the Platform shall not be responsible to underperform or not to perform any of its obligations set out herein late or at all. Any late or incomplete performance in case of a force major event shall not be considered a non-performance or an event of default, or the Member shall not have the right to claim any right or compensation under any name against Platform in such circumstances.  The term “force major event” shall refer to any event that is beyond the reasonable control of Platform and that cannot be avoided in spite of the necessary due care and diligence, including but not limited to God’s acts, riots, state of war, strike, cyber attacks, communication troubles origination from service providers and access issues, technical infrastructure and Internet breakdowns or malfunctions, system improvement or upgrade works and related malfunctions, power shortage and extreme weather conditions.

7. APPLICABLE LAW AND JURISDICTION

Turkish law shall be applicable to the governance, interpretation and performance of this Agreement and legal relations hereunder. The Central Courts and Execution Offices of Istanbul shall have jurisdiction over any present or future dispute that may arise from this Agreement.

8.  VALIDITY OF RECORDS

The Member agrees, represents and undertakes that all electronic and system records and commercial records as well as book records, microfilms and microfiches and computer records maintained at the Platform’s own web site and its servers shall constitute valid, binding, conclusive and exclusive evidence in case of any dispute that may arise from the Agreement. 

9. SEVERABILITY

In case any provision or term hereof becomes invalid or unlawful or unenforceable, this shall not affect the validity or effectiveness of the remaining provisions of the Agreement.

10. NOTICES 

The Members shall be contacted by means of e-mail address/mobile phone numbers they provide during registration or by means of general information available on the Website. Correspondence via e-mail shall replace the written communication. The Member shall be liable to keep all of their contact details up-to-date and to regularly control the Website for information purposes.

The Member agrees, declares and undertakes that as of its membership date, he hereby approves the on-line  agreement electronically and that it shall remain to be binding hereof during the whole term of his membership.  

For any requests or opinions Platform’s Contact Details: 

Paksam Fotoğraf ve Bilişim Teknolojileri Ticaret Anonim Şirketi

Mecidiyeköy T.O.: 7190247643

Valikonağı Cad. Konak Apt. 67/4 Nişantaşı 34371 Istanbul Turkey

Tel: +90 (212) 291 2122

Fax: +90 (212) 291 2583

E-mail: [email protected]