USER AGREEMENT

1. PARTIES AND SUBJECT MATTER

This User Agreement (the “Agreement”) is entered into between Paksam Fotoğraf ve Bilişim Teknolojileri Ticaret Anonim Şirketi (the “Platform”), having its registered office at Kazlıçeşme Mah. 245 Sok.No:5 34010 Zeytinburnu İstanbul, and the natural person registering as a member through the Website or Application (the “Member”), to establish the terms and conditions governing the use of the Services and 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): Content services and all other related applications made available by the Platform on the Website, the Application and/or other Media to enable Members to carry out the transactions defined in this Agreement and detailed on the Website and Application.

Medium/ Media: Any digital or virtual environment through which the Services are provided, including the Website and Application.

User(s): Visitors to the Services page on any Media who have not yet completed the membership procedures.

Member(s): Natural persons over the age of 18 who access the Media digitally, register for membership, with or without payment, to use the Services, and whose membership is approved by the Platform.

Website: The website or digital environment accessible through www.photier.com and its subdomains, on which the Platform provides the Services within the scope specified in this Agreement.

Application: The software that Members must download to their mobile phones from a digital source compatible with their mobile phone software to use the Services.

Event: Any occasion of special significance to individuals, such as an engagement, wedding, graduation or birthday celebration, attended by invitation and/or upon payment of a fee.

Event Page: The web page on the relevant Media displaying Photographs taken of Members at Events they attend.

Photographer: The person(s) contracted by the Platform who attend Events, take Photographs of Members and upload such Photographs to the Platform.

Photograph: All images of Members taken with their consent by the Photographer using a camera.

Member Page: The web page exclusive to the Member, on which the Member may carry out the transactions required to use the applications, Competitions and Services available on the Website and enter personal details and information requested for each application, accessible only by means of a username and password determined solely by the Member.

3. RIGHTS AND OBLIGATIONS

3.1 To acquire membership status, a User over the age of 18 wishing to become a Member must approve the Platform Terms of Use Agreement on the Website, complete the membership form with accurate information, and upload a Photograph of the User (for a Member wishing to use face recognition matching; such service shall be provided only upon the separate explicit consent specified in Article 3.15); or, if the User has a Facebook account, provide such information automatically through that account. The membership application must be evaluated and approved by the Platform. Membership commences upon completion of the approval process and notification to the User, whereupon the Member acquires the rights and obligations specified in this Agreement and the relevant parts of the Website. The User and Member shall be personally liable for all losses arising from failure to obtain membership, failure to deliver a purchased Photograph, delivery of Photographs to the wrong persons, failure to refund fees or any other circumstances resulting from inaccurate information or failure to satisfy the membership requirements truthfully.

3.2 Membership rights and obligations shall belong exclusively to the person whose membership is approved. The Member may not assign or transfer such rights or obligations to any third party, in whole or in part. If a dispute arises as to the natural person to whom rights and obligations relating to membership or Photographs belong, and the persons concerned submit claims to the Platform, the Platform may verify identities, conduct individual interviews and carry out any investigation necessary to reach a decision. The Platform shall make a final determination recognizing only one natural person as the holder of the relevant membership account rights and obligations and shall act accordingly. In such circumstances, the Platform shall not be liable for any unlawfully created membership or uploaded Photograph; the person who created the account or uploaded the Photograph shall be solely liable to the rightful holder.

3.3 The User agrees and represents that, to initiate membership and/or a purchase through the Website or Application, the User must fulfill all necessary legal obligations and procedures, including those specified on the Website, and that the Platform shall not be liable for any failure to fulfill such obligations or procedures. The User/Member shall be liable for all losses incurred by the Platform in connection with payment for the Services and shall, upon first demand, pay all losses arising from claims by banks or cardholders in connection with payment systems, together with all ancillary amounts.

3.4 The Member agrees and undertakes that such information, content and images submitted through the Media shall be accurate and lawful and shall not involve defamation, disparagement, statements damaging reputation, insults, profanity, slander, threats, harassment or any other unlawful or immoral conduct; that publication of such information and content shall not violate applicable legislation or infringe any rights; and that the Member holds all rights and authorizations required to publish such content on the internet and all Media. The Member shall bear civil and criminal liability for any act or transaction to the contrary.

3.5 The Member further irrevocably agrees, represents and undertakes that, by appearing in Photographs at Events and/or in the street or any other location, the Member shall be deemed to have assigned to the Platform all economic rights in such Photographs and any visual content supplied by the Member, including the rights of adaptation, distribution, reproduction and making available to the public, without restriction as to geographical area, time or medium, and shall immediately complete all formalities required for such assignment free of charge.

3.6 The Platform shall process such personal data shared by the Member through the membership account in its capacity as data controller under Law No. 6698 on the Protection of Personal Data (“KVKK”), solely for the purposes specified in the KVKK Information Note published on the Website and Application and on the legal grounds expressly specified therein for each purpose. Upon a request from competent authorities pursuant to applicable legislation, the Platform shall disclose the membership information it holds to such authorities. In disputes between Members, such information may also be disclosed to other users who may be parties to the dispute and to the parties involved, solely to enable other users to exercise their legal rights, in compliance with KVKK and the principle of proportionality.

3.7 The username and password required to access the Member Page and carry out certain transactions on the Media shall be created by the Member. The Member shall be fully responsible for the security and confidentiality of such details. The Member agrees, represents and undertakes that all transactions carried out using the Member’s username and password shall be deemed to have been carried out by the Member, who accepts liability for such transactions in advance; that the Member shall not raise any defense or objection on the grounds that such transactions were not carried out by the Member; and that the Member shall not avoid fulfilling any obligations on the basis of such defense or objection.

3.8 The Platform is the sole owner of all content available on the Media and does not permit or consent to any unlawful use of such content, including the uses listed below, or to the acquisition, copying, processing or use of all or any part of such content or the creation of links to it:

• Use of the Website by the Member or a third party to create, check, update or modify a database, record or directory belonging to that person or another person;
• Use of all or any part of the Website for disruption, modification or reverse engineering;
• Carrying out transactions using false information or another user’s information; creating fictitious user accounts by providing false or misleading personal information, residential addresses, e-mail addresses, contact, payment or account details; using such accounts to use the Website unlawfully, whether within or outside the scope of these terms of use, the membership agreement or its annexes; using another user’s account without authorization; impersonating another person; or entering into or participating in transactions or creating accounts under a false name;
• Use of the Website or Application for any unlawful or fraudulent purpose;
• Use, copying, modification, transmission or replacement of all or any part of copyrighted or legally protected content, or content belonging to the Website or third parties, including content protected by privacy and publication rights, without ownership or permission;
• Manipulating the price of any transaction or interfering with other users’ transactions;
• Use of comment, reply and rating systems for purposes outside the Website or other than their intended purposes, such as publishing Website competition details or Member comments outside the Website;
• Distribution of chain letters or unsolicited e-mail (spam);
• Distribution of viruses or any other technology harmful to the Website, its database or any content on the Website;
• Collection of any information about Users or Members, including e-mail addresses, without their permission;
• Attempting to access the Website in a manner that imposes unreasonable or disproportionately large loads on the communications and technical systems designated by the Website, or that blocks, stops, disrupts, damages or modifies such communications or systems in any way;
• Use of automated programs, robots, web crawlers, spiders, data mining, data crawling or other “screen scraping” software or systems on the Website without the Platform’s prior written consent, or the unauthorized copying, publication or use of all or any part of the Website’s content by such means. Unauthorized use of the Website or its content outside the limits set by this Agreement is unlawful; the Platform reserves the right to suspend or cancel membership immediately and to pursue claims, legal actions and enforcement proceedings without refunding any fees.

3.9 The Platform may process and store such “Membership/Personal” information declared by the Member, in accordance with the Confidentiality Policy, to perform its obligations under this Agreement, operate the applications required to run the Website and carry out statistical evaluations without disclosing the Member’s identity, on the legal grounds specified for each purpose in the KVKK Information Note. Use for advertising, marketing and other commercial communications, and disclosure to third parties for such purposes, shall be permitted only upon the Member’s separate and optional explicit consent/commercial electronic communication approval. Such approval shall not be a prerequisite for membership or use of the Services, including photo matching, and may be withdrawn by the Member at any time. The Platform shall be responsible for its obligations as data controller under KVKK; the Member shall be liable for providing false information or sharing personal data belonging to third parties. The Platform shall take all necessary measures to store such information securely. The Member shall have all rights specified in Article 11 of KVKK, including rectification, deletion/destruction of personal data at any time, and may exercise such rights through the communication channels specified on the Website.

3.10 The Member may log in to the Website through the Member’s account using the password, visit Event Pages, purchase Photographs and use the other Services. To maintain membership and use the Services, the Member must fulfill all applicable requirements, including payment of service fees. Membership may be suspended or cancelled if such requirements are not fulfilled or in any other circumstances the Platform determines to be necessary. Where deemed necessary and on justified grounds, the Platform may prevent a person from becoming a Member, suspend or cancel membership, cancel a purchase and take any measures it deems necessary.

3.11 Members’ connections to the Media and Photograph download times and quality may vary depending on their connection speeds. This may affect the Member’s use of the Services, but the Platform shall not be liable in this regard. The Member shall bear all connection charges incurred through any device.

3.12 The Platform shall continually publish the terms and rules governing use of the Services on the Website and may amend such terms and rules by publishing the amendments on the Website whenever deemed necessary. The Member shall monitor and comply with such terms and rules throughout the membership relationship.

3.13 Membership must be active to use the Services and receive purchased Photographs. Membership may be cancelled at any time through the Member Page or by sending an e-mail entitled “Termination of Membership” to the contact address on the Website. Cancellation is subject to the Platform’s approval and shall take effect from the following month. If removal from the communication list is also requested, promotional and sales communications shall also be discontinued within 3 business days. Communications required by legislation in relation to purchased Services are excluded from this provision.

3.14 Since the Service uses face recognition technology, the faces of Members or non-members may appear in the same frame when other Members are photographed and may therefore be shared with other Members or published on the Media without their consent. If a Member or the person concerned believes that such Photographs have been published without their consent, that person shall promptly notify the Platform and request correction. The Platform shall evaluate the notification and remove the relevant Photograph from publication if it identifies any unlawfulness; the Platform’s obligations as data controller under KVKK shall remain unaffected.

3.15 Face recognition technology shall be used within the scope of the Service for matching the Photographs with the photograph uploaded by the Member, and such facial data processed in this scope shall constitute biometric data which are special category personal data within the meaning of Article 6 of KVKK. The Platform shall process such data solely on the basis of explicit consent given by the Member, after receiving the KVKK Information Note, by clicking a separate, non-pre-ticked checkbox in the Application or on the Website, distinct from other approvals. The Member may withdraw such consent at any time; upon withdrawal, face recognition matching shall cease and the biometric data shall be deleted or destroyed as specified in the KVKK Information Note.

3.16 The use of the photo matching service shall not be conditional upon granting marketing permission/commercial electronic communication approval or explicit consent for the processing of biometric data. The Member who does not grant explicit consent for the processing of biometric data may have access to the Member’s Photographs without face recognition matching through [alternative methods offered by the Platform (e.g. Event Page, invitation link or QR code)].

4. INTELLECTUAL PROPERTY RIGHTS

The Member may not resell, share, distribute, display or reproduce the Services provided through the Media, Platform information, the Platform’s copyrighted works or images belonging to other Members; create or prepare derivative works thereof; or allow others to access or use such Services or content. Otherwise, the Member shall be liable for all compensation claimed from the Platform for losses suffered by third parties, including licensors, and all other liabilities, including court costs and attorneys’ fees.

The Platform reserves all rights in its assets, rights in rem and personal rights, commercial information and know-how, including all tangible and intellectual property rights relating to the software used to provide the Services, commercial information, copyrighted works, Platform trademarks, trade dress and the Website. Such rights may not be used without permission.

5. AMENDMENTS AND TERMINATION

The Platform may amend this Agreement unilaterally, at its sole discretion and at any time it deems appropriate, by publishing the amendments on the Media. Amended provisions shall take effect on the date of publication; the remaining provisions shall remain in force and continue to have effect. This Agreement may not be amended by a unilateral declaration of the Member. However, following an amendment, the Member may exercise the right to terminate at any time in accordance with the applicable cancellation rules.

The Platform may cancel membership and terminate this Agreement with immediate effect at any time, pursuant to its rights under this Agreement or without stating any reason.

6. EFFECTS OF THE FORCE MAJEURE

In all circumstances legally recognized as force majeure, the Platform shall not be liable for delayed, incomplete or non-performance of any of its obligations under this Agreement. Any such delayed, incomplete or non-performance due to force majeure shall not constitute an event of default, and the Member may not assert any claim or seek compensation from the Platform on such grounds. “Force majeure” means any event beyond the Platform’s reasonable control that cannot be prevented or avoided despite the exercise of due care, including natural disasters, riots, war, strikes, cyber attacks, communication disruptions and access problems arising from service providers, technical infrastructure and internet failures, system improvements or upgrades and related failures, power outages and adverse weather conditions.

7. APPLICABLE LAW AND JURISDICTION

Turkish law shall govern the application and interpretation of this Agreement and the legal relations arising hereunder. The Istanbul Central Courts and Enforcement Offices shall have jurisdiction over any dispute arising or that may arise from this Agreement.

8. VALIDITY OF RECORDS

The Member agrees, represents and undertakes that the electronic and system records, commercial records, books, microfilms, microfiches and computer records maintained in the Platform’s own database and on its servers shall constitute valid, binding, conclusive and exclusive evidence in any dispute arising from this Agreement; that the Member waives the right to tender an oath to the Platform; and that this Article constitutes an evidentiary agreement within the meaning of Article 193 of the Code of Civil Procedure (HMK).

9. SEVERABILITY

The invalidity, unlawfulness or unenforceability of any provision or statement in this Agreement shall not affect the validity or enforceability of its remaining provisions.

10. NOTICES

Members shall be contacted through the e-mail addresses/mobile phone numbers provided upon registration or through general notices on the Website. Communication by e-mail shall serve as written communication. The Member shall be responsible for keeping all contact details up to date and checking the Website regularly for notices.

By approving this Agreement electronically, the Member agrees, represents and undertakes to be bound by its provisions from the date of membership and throughout the membership term.

For any requests or opinions Platform’s Contact Details: 

Business Name:photier.com

Responsible Person:Tolga Cinisli

Trade Name:Paksam Fotoğraf ve Bilişim Teknolojileri Ticaret Anonim Şirketi

Tax Office:Zeytinburnu

Tax Number:7190247643

Trade Registry No.:876841

MERSIS Number:0719024764300014

KEP Address:[email protected]

Head Office:Kazlıçeşme Mah. 245 Sok.No:5 34010 Zeytinburnu İstanbul

Telephone:+90 (212) 291 2122

Fax:+90 (212) 225 2302

E-mail:[email protected]