Denny’s Digital Accessibility Settlement Agreement

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Congratulations Denny’s! Posted here is the company’s digital accessibility settlement agreement with the American Council of the Blind and blind Denny’s customer Lisa Irving. It describes the company’s commitment to make its web and mobile content accessible and usable by all users, including those with disabilities. Denny’s is using the Web Content Accessibility Guidelines (WCAG) 2.0 AA as its web and mobile standard. This agreement was reached in Structured Negotiation; no lawsuit was filed or needed. Linda Dardarian, of the Oakland, California civil rights firm Goldstein, Borgen, Dardarian & Ho and the Law Office of Lainey Feingold represented the advocates. Feedback on Denny’s website can be sent to the company through the phone and email listed on Denny’s new Accessibility Information Page.

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DENNY’S ACCESSIBLE INFORMATION SETTLEMENT AGREEMENT

This Settlement Agreement (“Agreement”) is entered into by and between Lisa Irving, the American Council of the Blind (collectively referred to as “Claimants”) and Denny’s, Inc., on behalf of itself and its affiliates (“Denny’s”) for the purposes and on the terms specified herein and operates in conjunction with the Confidential Addendum to this Agreement. Together Claimants, and Denny’s are referred to herein as the Parties.

I. RECITALS

This Agreement is based on the following facts:

A.
Claimants use Denny’s website and have an interest in it being accessible to people with disabilities.
B.
Denny’s maintains a website for the convenience of the members of its customers at dennys.com.
C.
A dispute has arisen between Claimants and Denny’s concerning whether Denny’s is adequately ensuring that the Denny’s Website, and the Denny’s Mobile Application(s), as defined below, are accessible to Persons with Visual Impairments (“Accessible Information Dispute” or “the Dispute”).
D.
Claimants notified Denny’s about the Dispute and offered to engage in Structured Negotiations, in lieu of litigation, to resolve the Dispute. The Parties have engaged in good faith negotiations and shared relevant information regarding the Dispute. The Parties now enter into this Agreement to resolve the Dispute and to avoid the burden, expense, and risk of potential litigation.
E.
By entering into this Agreement, Denny’s does not admit, and specifically denies, that it has violated or failed to comply with any provisions of the ADA, any applicable laws of any state relating to accessibility for Persons with Visual Impairments, any regulations or guidelines promulgated pursuant to those statutes, or any other applicable laws, regulations, or legal requirements. Neither this Agreement, nor any of its Exhibits, Addenda, terms or provisions, nor any of the negotiations connected with it, shall be construed as an admission or concession by Denny’s of any such violation or failure to comply with any applicable law. This Agreement and its terms and provisions, including these Recitals and all Exhibits and Addenda, shall not be offered or received as evidence for any purpose whatsoever against Denny’s in any action or proceeding, other than a proceeding to enforce the terms of this Agreement and the Confidential Addendum executed herewith.

THEREFORE, the Parties hereby agree to the following provisions:

II. Definitions.

As used in this Agreement:

A.
Accessible PDF means a PDF document that satisfies WCAG 2.0 Conformance Level AA Success Criteria.
B.
Customer Service Telephone means the customer service telephone numbers published by Denny’s in its marketing materials (e.g. the Contact Us page(s) of the Denny’s Websites).
C.
Effective Date means January 5, 2015.
D.
Person(s) with a Visual Impairment means any person who has a physical, mental or sensory impairment that substantially limits him or her in the major life activity of seeing.
E.
Third-Party Content means web content that is generated by a third party and not owned, coded, or hosted on Denny’s Websites.
F.
Denny’s Application(s) for Mobile Devices (or “Denny’s App”) means mobile applications published by Denny’s.
G.
Denny’s Website means the consumer websites with the url of dennys.com.

III. Duration of Agreement.

The terms of this Agreement shall remain in effect through March 31, 2016.

IV. Website Accessibility Provisions.

A. Best Efforts.
Denny’s will use best efforts to ensure that the Denny’s Websites substantially comply with the Web Content Accessibility Guidelines (WCAG) 2.0, Conformance Level AA Success Criteria (“Access Standard”), by December 31, 2015. The Parties acknowledge that some WCAG Conformance Level AA Success Criteria address features or design elements that may not be used on the Denny’s Websites, and in such circumstances compliance with those Success Criteria will not be required.
B. Captcha.
If any Completely Automated Public Turing Test to Tell Computers and Humans Apart or similar visual or textual Turing or reverse-Turing verification test (referred to herein as “CAPTCHA”) is used on any Denny’s Websites, Denny’s will incorporate alternative security measures that are usable by Persons with Visual Impairments.
C. PDF Documents on the Denny’s Websites.
Denny’s will use best efforts to ensure that all PDF documents available on the Denny’s Websites are Accessible PDF
D. Third-Party Content.
Denny’s only obligations under this Settlement Agreement with respect to Third-Party Content are the following:
1. Periodically throughout the Term of the Agreement, Denny’s will test Third-Party Content on the Denny’s Websites to determine if it meets the Access Standard. Where Denny’s finds content that does not satisfy the Access Standard, or where Claimants notify Denny’s of such content, within thirty (30) days Denny’s will request in writing that the particular third party(ies) supplying that web content to Denny’s bring their content into conformance with the Access Standard. Denny’s will request that the vendors provide a written response within thirty (30) days.
2. If Denny’s is notified that a third party vendor will not bring its content into conformance with the Access Standard, Denny’s will consider in good faith to find an alternative vendor that provides the content in compliance with the Access Standard, subject to Denny’s existing contractual obligations to the third party vendor. Denny’s will not be required to violate any confidentiality or non-disclosure agreements for any purpose or to terminate a pending third party vendor contract prior to its expiration date.
3. If, on or after the Effective Date, Denny’s issues requests for proposals for development or inclusion of Third-Party Content on the Denny’s Websites, or if Denny’s extends contracts for Third-Party Content existing as of the Effective Date, Denny’s will include compliance with the Access Standard as a requirement in all such requests for proposals and vendor contracts. Denny’s will use good faith efforts to select Third-Party vendors who can meet the Access Standard, in addition to other criteria in the request for proposals and vendor contracts.
F. Website Accessibility Policy.
No later than December 31, 2015, Denny’s will develop an internal website accessibility policy that, at a minimum, will include:
1. a statement of the Access Standard and Denny’s commitment to use it; and
2. protocols for testing and measuring accessibility of technology that is obtained from third party developers and vendors.
Denny’s will provide Claimants with a draft of this website accessibility policy prior to its being finalized. Claimants will provide their feedback on this draft policy within fifteen (15) days of receipt, and Denny’s will consider the feedback provided by Claimants in good faith.

V. Denny’s Applications for Mobile Devices Accessibility Provisions.

Denny’s will use best efforts to ensure that any Denny’s Applications for Mobile Devices substantially comply with the Access Standard by no later than December 31, 2015. The Parties recognize that some WCAG 2.0 Level A and AA Success Criteria address features or design elements that may not be used on Denny’s Applications for Mobile Devices and in such circumstances compliance with those Success Criteria is not required. The Parties also recognize that the accessibility of features used on Denny’s Applications for Mobile Devices are dependent on the operating systems of third parties, over which Denny’s has no control.

VI. Denny’s Customer Emails.

Denny’s will use best efforts to ensure that the content of all emails that Denny’s sends to individuals who have signed up to receive company emails substantially complies with the Access Standard by no later than December 31, 2015.

VI. Accessibility Consultants, Usability Testing, and Compliance Tool.

A. Accessibility Consultants.
During the term of this Agreement, Denny’s shall ensure that it has sufficient expertise to comply with the Access Standard, either by utilizing qualified in-house personnel whose experience has been shared with and found generally acceptable by Claimants, or by retaining an outside consultant to assist Denny’s principal web developers in ensuring substantial compliance with the Access Standard.
B. Usability Testing.
At least once before the date set forth in Section III of this agreement, Denny’s will ensure that the Denny’s Websites are tested using various types of devices, assistive technology, browsers, and operating systems. Throughout the Term of the Agreement, Denny’s will also consider feedback from Claimants regarding the accessibility and usability of the Denny’s Websites.

VII. Accessibility Information Page on the Denny’s Websites.

A. Creation of an Accessibility Information Page.
No later than December 31, 2015, Denny’s will post an Accessibility Information Page on the Denny’s Websites. The Accessibility Information Page will, at a minimum, be available from a link on the footer of the home page of the Denny’s Website and all pages where the footer appears. The page will include, at a minimum: (i) information regarding Denny’s efforts to meet the Access Standard on the Denny’s Websites; (ii) information regarding Denny’s efforts to meet the Access Standard for Applications for Mobile Devices, as applicable; (iii) information regarding use of the Denny’s Websites by Persons with Visual Impairments including usability tips; and (iv) a web-based or e-mail, and telephone-based method for Persons with Visual Impairments to contact Denny’s regarding accessibility concerns.
B. Claimants’ Prior Approval of Accessibility Information Page.
Denny’s will provide Claimants with a draft of the Accessibility Information page(s) prior to its/their being finalized. Claimants will provide their feedback on this information within fifteen (15) days of receipt, and Denny’s will consider the feedback provided by Claimants in good faith.

VIII. Meetings Regarding this Agreement.

A. Required Meetings.
On a mutually agreed upon date during the Term of this Agreement, the Parties will meet by telephone to discuss any issue concerning implementation of this Agreement.
B. Feedback Tracking.
Denny’s will use reasonable efforts to track all feedback it receives via email, telephone customer service, and the Denny’s Websites from Persons with Visual Impairments regarding the issues addressed in this Agreement and to mitigate any accessibility barriers that might be identified.

IX. Procedures in the Event of Disputes.

A. Notice of Non-Compliance.
If a Party believes that any other Party has not complied with any provision of this Agreement, that Party shall provide the other Party with Notice of Non-Compliance containing the following information:
1. the alleged act of non-compliance;
2. a reference to the specific provision(s) of the Settlement Agreement or Confidential Addendum that are involved;
3. a statement of the remedial action sought by the initiating party; and
4. a brief statement of the specific facts, circumstances and legal argument supporting the position of the initiating Party.
B. Response.
Within thirty (30) days of receipt of a Notice provided pursuant to Section XI.A, the non-initiating Party shall respond to the initiating Party in writing.
C. Meet and Confer.
Within two weeks after the response described above, the Parties shall informally meet and confer and attempt to resolve the issues raised in the Notice.
D. Submission to Mediation.
If the matters raised in a Notice provided pursuant to Section XI.A are not resolved within forty-five (45) days of the initial meet and confer required by Section XI.C, either Party may submit the unresolved matters to nonbinding mediation before a mutually agreed upon mediator affiliated with Judicial Arbitration & Mediation Services (“JAMS”), or such other mediator as the Parties may jointly designate.
E. Submission to Arbitration.
If mediation fails to resolve the matter, the Parties then will settle the matter finally by means of arbitration conducted by JAMS pursuant to its Streamlined Arbitration Rules and Procedures at a mutually convenient location. The award of the arbitrator will be enforceable in a court of competent jurisdiction.

X. Notice or Communication to Parties.

Any notice or communication required or permitted to be given to the Parties shall be given in writing by e-mail and by overnight express mail or United States first class mail, addressed as follows:

For Denny’s
Denny’s, Inc.
203 E. Main St.
Spartanburg, SC 29319
Attn: General Counsel

For Claimants

Linda Dardarian
Goldstein, Borgen, Dardarian & Ho
[email address omitted]
300 Lakeside Drive, Suite 1000
Oakland, CA 94612

Lainey Feingold
Law Office of Lainey Feingold
[email address omitted]

XI. Publicity Regarding This Agreement and Its Terms.

The Parties will mutually draft in good faith a joint press release to be issued as soon as practicable after the Access Standard is met. During the term of this Agreement, Claimants will not issue a press release or statement relating to this Agreement or the Claimants relationship with Denny’s without Denny’s consent.

XII. General Provisions.

The following Conditions shall apply to this Agreement.

A. Assigns and Successors.
This Agreement shall bind any assigns and successors of Denny’s. Within thirty (30) days of assignment or succession, Denny’s shall notify Claimants in writing of the existence, name, address and telephone number of any assigns or successors relating to the subject matters addressed herein.
B. No Third Party Beneficiaries.
This Agreement is for the benefit of the Parties hereto only and no other person or entity shall be entitled to rely hereon, receive any benefit herefrom, or enforce against either party any provision hereof. The Parties specifically intend that there be no third party beneficiaries to this Agreement.
C. Force Majeure.
The performance of Denny’s under this Agreement shall be excused during the period and to the extent that such performance is rendered impossible, impracticable or unduly burdensome due to acts of God, strikes or lockouts, unavailability of parts, equipment or materials through normal supply sources, security threat, or any other event of force majeure. If Denny’s seeks to invoke this Section as the result of an event of force majeure it shall notify Claimants in writing as soon as reasonably practicable, specifying the particular action(s) that could not be performed and the specific reason for non-performance. Claimants’ Counsel and Denny’s will thereafter meet and confer regarding an alternative schedule for completion of the action that could not be performed, or an alternative action. Any dispute regarding the applicability of this Section, or any future action to be taken, that remains after the meet and confer session will be handled as a dispute pursuant to Section IX of this Agreement.
D. Headings.
The headings used in this agreement are for convenience only and shall not be deemed to be a part of this agreement for purposes of construction.
E. Recitals and Exhibits.
This Agreement encompasses the entire agreement of the parties, and supersedes all previous understandings and agreements between the parties, whether oral or written. By signing this Agreement, the parties hereby acknowledge and represent, that said parties have not relied on any representation, assertion, guarantee, warranty, collateral contract or other assurance, except those set out in this Agreement, made by or on behalf of any other party or any other person or entity whatsoever, prior to the execution of this Agreement. The parties hereby waive all rights and remedies, at law or in equity, arising or which may arise as the result of a party’s reliance on such representation, assertion, guarantee, warranty, collateral contract or other assurance, provided that nothing herein contained shall be construed as a restriction or limitation of said party’s right to remedies associated with the gross negligence, willful misconduct or fraud of any person or party taking place prior to, or contemporaneously with, the execution of this Agreement.
F. Multiple Originals/Execution in Counterparts.
Each Party and Claimants’ Counsel shall sign one copy of this document and each such copy shall be considered an original. This document may be executed in counterparts and facsimile and PDF signatures shall be accepted as original.

PARTIES:

      • DENNY’S, INC.
      • AMERICAN COUNCIL OF THE BLIND
        By: Melanie Brunson, Executive Director
      • LISA IRVING
        By: Lisa Irving

APPROVED AS TO FORM:

    • GOLDSTEIN, BORGEN, DARDARIAN & HO
      By: Linda M. Dardarian, Esq.
    • LAW OFFICE OF LAINEY FEINGOLD

Simplified Summary

This is a legal agreement signed by Denny’s.  Denny’s agreed to make its website and mobile app accessible.  This means everyone, including disabled people can use the website. Denny’s signed this agreement with the American Council of the Blind. A blind Denny’s customer also was involved.  Denny’s will use the Web Content Accessibility Guidelines 2.0 AA to improve its website and mobile app.  No lawsuit was filed.  Denny’s worked with the blind community in a dispute resolution process called Structured Negotiation.  Back to settlement agreement.