Terms of Use

Acceptance of Terms

ESDesign operates the website myphotoshopbrushes.com ("Website"), a platform that allows you to post, link, store, share and otherwise make available certain information, text, graphics, photos or other material (together "Content"). Our goal is to help graphic designers and everyone who is looking for Content that you can use for free subject to and in compliance with these Terms.

Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all designers, visitors, users and others who access and/or use the Service.

By accessing or using the Service, whether as a designer, visitor or user of the Website, you agree to be bound by these Terms. These Terms serve to protect and safeguard your rights, the rights of other users, our rights and the rights of third parties in the course of operating the Website. If you do not agree to the terms of use, you must immediately stop using any part of the Service.

We reserve the right to change or adapt these Terms at any time and without giving reasons with effect for the future. You will be notified of these changes at least two weeks before they take effect by posting them on the Website and should you have created a user account on our Website by notifying your registered e-mail address. You have the right to immediately cancel and terminate your account on our Website if you do not agree to the changes to the Terms. Changes shall be deemed approved by you if you continue to use the Service after the new Terms come into effect.

The use of the Service is subject to the Terms in force at the time of use.

Accounts and Registration

You have the option of creating a user account on our Website so that you can use the additional functions of the Website, in particular for uploading Content or for participating in any contests made available through the Service. The opening of a user account can only take place with the agreement to these Terms.

Upon registration, we and you enter into a contract for the use of the Website and the Services. There is no claim to the conclusion of this contract. ESDesign is entitled to refuse your registration without giving reasons.

You may only register with us if you are 18 years of age or if you act with the consent of your parents or guardian to register under these Terms. ESDesign reserves the right to verify the consent of your parents or guardian. Therefore, you must provide an e-mail address of your parents or guardian when you register, so that we can obtain a declaration of consent from your parents or guardian.

When you create an account with us, you must provide us with the information and data requested by ESDesign that is accurate, complete, and current at all times. If your data changes after registration, you are obliged to correct the information in your account immediately.

You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you without authorization, or a name that is otherwise offensive, vulgar or obscene.

You are responsible for safeguarding the password that you use to access the Service and for any activities or actions under your password, whether your password is with our Service or a third-party service. If you are not responsible for the misuse of your member account, you are not liable. You agree not to disclose your password to any third party. You must notify us immediately by contact page upon becoming aware of any breach of security or unauthorized use of your account.

Contests and Promotions

Occasionally, ESDesign or our partners and/or advertising partners conduct promotional activities on the Website, such as contests or other promotions (together "Promotions"). Each of these Promotions are subject to additional special conditions ("Conditions of Participation"), which will be published on our Website or otherwise notified to you by ESDesign.

When participating in Promotions, you must separately agree to the applicable Conditions of Participation. After approval, the Conditions of Participation are an integral part of these Terms. In the event of a conflict between the Conditions of Participation and the Terms, the Conditions of Participation shall prevail with respect to the Promotion in question.

All prizes in connection with a Promotion are non-transferable and cannot be changed for cash or other products or services. ESDesign reserves the right to modify or replace the Promotion prizes.

Information on Data Protection

Participation in the Promotion requires the participant to provide personal data such as name, address, telephone number and e-mail address. These personal data will be collected and processed by ESDesign and/or by appointed providers (e.g. companies providing tech gadgets, coupons or other prizes) for the purpose of participation, implementation and handling of the Promotion and the possible notification of a win on the basis of Article 6 (1) (b) GDPR (performance of contractual relationships with you). Personal data will not be passed on to third parties, with the exception of partners, which are also involved in the Promotion. In the event of a win, the personal data collected for participation in the Promotion will be transferred to the respective third party involved (hotels, travel agents/organisers) exclusively for the above-mentioned purpose. As soon as the process of determining the winner and of handing-out the price is completed and the data provided is no longer required, they are deleted, unless continued storage is required on legal grounds.

You have the right:

• in accordance with Article 15 GDPR to obtain information about the personal data processed by us;
• in accordance with Article 16 GDPR DSGVO to obtain without undue delay the rectification or completion of your personal data stored by us;
• in accordance with Article 17 GDPR to obtain the erasure of the personal data stored by us, unless the processing is necessary for exercising the right of freedom of expression or information, for compliance with a legal obligation, for reasons of public interest or for the establishment exercise or defense of legal claims;
• in accordance with Article 18 GDPR to obtain the restriction of the processing of your personal data if you contest the accuracy of the personal data, the processing is unlawful, but you oppose their erasure and we no longer require the data, but you require these for the establishment, exercise or defense of legal claims or you have objected to their processing in accordance with Article 21 GDPR;
• in accordance with Article 20 GDPR to receive your personal data in a structure, commonly used and machine-readable format or have such transmitted to another controller;
• in accordance with Article 77 GDPR to complain to a supervisory authority. You can usually contact the supervisory authority at your normal place of residence or your workplace or where we are headquartered for this.

Such personal data as may be collected, saved, transferred, processed or used shall be consulted by ESDesign and by such providers as are appointed in this connection – together with any partners which may be involved – and (in the event of a win) collected, saved etc by any involved 3rd parties (hotels, travel agents/organisers) exclusively for that purpose and shall be deleted once the competition has been wound up in its entirety, unless there are compulsory legal reasons requiring that the data should not be deleted. Otherwise, the general data-protection guidelines of ESDesign (Privacy Policy) shall apply.

User Content

When you upload any Content to the Service, you grant us a worldwide, non-exclusive, permanently, irrevocable, royalty-free license (with the right to sublicense) to reproduce, adapt and modify (incl. translation), distribute, publicly perform, publicly display, broadcast, make available, store and archive and otherwise use such Content (in whole or in part) on and through the Service.

You acknowledge and confirm that your Content will be made available to the public on and through the Service for personal and commercial use of third parties subject to these Terms without providing you attribution or compensation.

You may not upload, post or transmit any Content that:

• Infringes any third party’s copyrights or other intellectual property rights, contract rights or any other rights of any person;
• Contains any pornographic, racist, defamatory, libelous or otherwise immoral, vulgar or obscene content;
• Depicts unlawful or violent, hateful or threatening or otherwise inappropriate acts;
• Offends, defames, harasses or otherwise damages ESDesign or any third party;
• Violates any law, statute, or regulation.

We reserve the right to remove any Content at any time if we believe it’s defective, of poor quality, or in violation of these Terms.

You represent and warrant that:

the Content is yours (you own it) or you have the right to use it and grant us the rights and license as provided in these Terms, and

ESDesign will not need to obtain licenses from any third party or pay a compensation or royalties to any third party with respect to the Content;

your Content does not infringe any third party rights (including in particular copyrights, neighboring rights, intellectual property rights, name rights, right of personality, rights of privacy, data rights or other property rights), and

your Content complies with these Terms and all applicable laws.

When you upload any Content to the Service you also authorize us under your copyrights to enforce any violations of the sublicense we grant in the Content to others. In other words, ESDesign is entitled to take appropriate measures to pursue the rights granted to us hereunder. You shall support us in the court or non-court assertion of the acquired rights, in particular by providing information, providing the necessary original documents and other documents, making or having made the necessary assignment of rights to ESDesign, as well as preparing any further declarations or documents which should be required or useful for the realisation of the license granted by you to ESDesign.

Intellectual Property; License to Users

Subject to your compliance with these Terms, you may access and use the Website and Service.

The Website and the Service are protected by copyright, trademark and/or other protective rights and are subject to copyright law and other protective laws ("ESDesign Rights"). ESDesign is the rightful owner or licensee of all rights to the Website and the Service. With the exception of the use of the Website and Service in accordance with these Terms, use of ESDesign Rights is only permitted with the prior written consent of ESDesign.

Except for certain sponsored content (i.e. content from partners that you can buy from them by getting redirected to their website, hereinafter "Sponsored Content"), all Content made available for download on the Service can be used for free for personal and/or commercial purposes subject to some limitations as set out in these Terms. You do not need to, but you can, credit the designer or owner of the Content or myphotoshopbrushes.com

While designers and users that upload Content to our Website represent and warrant to us that they have all the rights therein and that the Content does not infringe any third party rights, ESDesign cannot reasonable monitor all Content uploaded to the Service. We therefore do not make any representations or guarantees for the rights granted hereunder to you.

Be aware that, depending on your intended use of the Content, you may need the permission or consent of a third party (e.g. owner of a brand, identifiable person or author/rights holder of copyrightable work depicted in the Content).

CC0 License

Some of the Content made available for download on the Service is subject to and licensed under the Creative Commons Zero (CC0) license ("CC0 Content"). The CC0 Content on the Service is marked with the reference "CC0 License" next to the content made available for download. This means that to the greatest extent permitted by applicable law, the authors of the of work have dedicated the work to the public domain by waiving all of his or her rights to the CC0 Content worldwide under copyright law, including all related and neighboring rights. Subject to the CC0 License Terms the CC0 Content can be used for all personal and commercial purposes without attributing the author, content owner of the CC0 Content or ESDesign.

Be aware that the patent or trademark rights of any person, nor the rights that other persons may have in the CC0 Content or in how the CC0 Content is used, such as publicity or privacy rights, are not affected by CC0. Therefore, depending on the intended use of the CC0 Content (in particular commercial purposes), in the case of the depiction of identifiable people, logos, trademark or copyrightable work depicted in the CC0 Content, you therefore may still need the permission or consent from third parties.

Furthermore, when using the CC0 Content, you may not imply endorsement of products and services by the author of the CC0 Content and/or any person, company or brand depicted in the CC0 Content.

Restrictions on use of the Service and Content

You represent and warrant to ESDesign that by using the Service you will NOT:

• impersonate any other person on the Services, e.g. a representative of ESDesign or any other person responsible for the Services, or impersonate any non-existent relationship with such persons;
• use the Service and/or Website for the storage, publication and/or transmission of "junk mails", chain letters, unsolicited bulk e-mails, etc., or for any other purpose. ("spamming");
• send any data or store any data on a ESDesign data carrier which, by its nature or nature (e.g. viruses), size or reproduction (e.g. spamming), is intended to impair or endanger the existence or operation of the Services and the ESDesign data network;
• make any electronic attacks of any kind on the Service or network; in particular, the use of computer programs to automatically read out data such as robots, spiders, etc. is prohibited;
• use or exploit any metatags or other hidden texts containing the name or trademark of ESDesign without the express written consent of ESDesign;
• collect, store or use any personal information, including member names and profiles, about other users;
• copy the look and feel of the Website.

Furthermore, despite the Content License provided to you by ESDesign hereunder you agree to NOT use any ESDesign Content made available via the Service (in whole or in part):

• to portray any person depicted in the Content (a "Person") in a way that a reasonable person would find offensive, including but not limited to depicting a Person: a) in connection with pornography, adult entertainment venues, escort services, dating services, or the like; b) in connection with the endorsement of products and services (i.e. statement made to the Person highlighting the benefits or recommending products/services to the public); c) in a political context, such as the promotion, advertisement or endorsement of any party, candidate, or elected official, or in connection with any political policy or viewpoint; d) as suffering from, or medicating for, a physical or mental ailment; or e) engaging in immoral or criminal activities;
• in a pornographic, defamatory, or deceptive context, or in a manner that could be considered libelous, obscene, or illegal;
• as a trademark, service mark, logo or other indication of origin, or as part thereof;
• in a manner that infringes upon any third party’s copyright, trademark or other intellectual property, or gives rise to a claim of deceptive advertising or unfair competition;
• falsely represent, expressly or by way of reasonable implication, that any Content was created by you or a person other that the copyright holder(s) of that Content;
• access, download, copy, modify, distribute, perform, or use any Content to create a similar or competitive service or to contribute the Content to an existing similar or competitive service.

Violation of Terms and Termination of Use

ESDesign reserves the right to reject the publication of Content at its own discretion and to delete Content already published.

ESDesign further reserves the right to restrict or suspend your access to the Services in whole or in part at any time, without prior notice and excluding any claim for damages on your part ("Suspension"), if there are reasonable grounds for suspecting violations by you of these Terms and/or the applicable Conditions of Participation.

If you prove within twelve (12) months after the Suspension that you have not violated the Terms the applicable Conditions of Participation, ESDesign will lift the Suspension. If such proof is not provided within the 12-month period, ESDesign is entitled to delete your member account including all its data.

ESDesign expressly reserves the right to take legal action, in particular to assert claims for damages or to file criminal charges.

Notice of Infringements

Please let us know if you believe that any Content made available on and via the Service contains a violation of the law. The message can be sent by the contact form.

If you as the copyright owner or as its representative believe that your copyrights are infringed by the Content of users stored, published or transmitted on the Website, please notify us by the contact form including the following information:

• a description of the rights you consider to have been infringed;
• a statement of the content you believe infringes your rights, preferably including a URL, and the part of the content you believe infringes the law;
• your address, telephone number and email address to contact you;
• a statement by you that, to the best of your knowledge and in good faith, you believe that the use in question has not been approved or is not authorized by the rightsholder or its agent.

Disclaimer of Warranty; Links to other third party sites

The use of the Service is at your own risk. The Website and the Service are offered to you on an "as is" and "as available" basis. We do not warrant that the Website or the Services will always be uninterrupted, current, timely, secure, error-free or suitable for use for any particular purpose or to achieve any particular result.

ESDesign does not guarantee that the content on the Website or on linked other sites is correct or complete. The content of the users does not reflect our opinions or views on life. The presence of links to other websites does not imply that ESDesign endorses or recommends the linked website. ESDesign has no influence on the contents of the linked external sites and is not responsible for them. We strongly advise you to read the terms and conditions and privacy policies of any third-party websites or services that you visit. ESDesign is also not responsible for the advertising of third parties published on the Website or for the goods or services offered therein.

If ESDesign becomes aware of any violations of the law through content, links to third-party websites or advertising published on the website, ESDesign will immediately delete such content, links or advertising.

ESDesign accepts no responsibility for errors, omissions, interruptions, deletions, defects, delays in operation or transmission, communication line failures or unauthorized access or theft, destruction or modification of user communications. Likewise, ESDesign is not liable for problems or technical malfunctions in connection with telephone networks or lines, online systems, servers or providers, computer equipment, software or for failures of e-mails or players due to technical problems or data jams on the internet and/or one of the Service, unless these are within the sphere of influence of ESDesign.

Liability

We are liable for damages according to the statutory provisions unless otherwise stated below. In the case of breach of obligation – on any legal ground whatsoever – we are responsible for intent and gross negligence. In the case of simple negligence, we are liable only for

• damage due to injury to life, body or health, and
• damage due to serious breach of a fundamental contractual obligation (obligation the performance of which at all enables the due performance of the agreement and on the compliance on which the contractual partner usually relies and is entitled to rely). In that case, the liability is, however, limited to reimbursement of foreseeable and typical loss.

The above limitations of liability also apply in favour of our employees, staff, representatives and agents.

For claims under the Product Liability Act, the statutory provisions apply exclusively.

Claims for damages against ESDesign shall become statute-barred after twelve (12) months from the date of their creation, unless they are based on intentional or grossly negligent acts.

Indemnification

You agree to defend, indemnify and hold ESDesign and its affiliates harmless from and against any and all claims, damages, liabilities, losses or demands arising out of or in connection with (i) your use and access to the Website and/or Service; (ii) your violation of these Terms; (iii) infringement of third party rights (copyrights, trademark rights, personal rights, etc.) by you or your Content. The indemnity obligation includes the reasonable costs of legal defence, in particular lawyer's fees, necessary to defend against such claims.

Data Protection

Use of the Website and Service is subject to our Privacy Policy.

Choice of law, place of jurisdiction

The law of the Republic of Poland shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods. For merchants, legal entities under public law and special funds under public law, the place of jurisdiction is Wrocław.

Miscellanous

These Terms, together with the applicable Conditions of Participation, our Privacy Policy, and any other legal provisions published by us on the Website, constitute the sole agreement between you and ESDesign regarding your use of the Website and the Services.

Should individual clauses of these Terms be wholly or partially invalid or should these Terms contain gaps, this shall not affect the validity of the remaining Terms.