Agreement Between Complaintants and AOL

From: David Andrews (dandrews@visi.com)
Date: Wed Jul 26 2000 - 20:46:44 PDT


Below is the text of the agreement between the individual complainants and America On-Line. I accidently left it out of a previous message. Sorry!

David Andrews

AGREEMENT

AGREEMENT, dated July 26, 2000 by and among the National Federation of the Blind ("NFB"), National Federation of the Blind of Massachusetts, Inc., Robert Baran, Steven Booth, Debra Delorey, Richard Downs, Priscilla Ferris, Theresa Jeraldi, Michael Kosior, Mary Ann Lareau and Brandy Rose (collectively referred to as "the plaintiffs") and America Online Inc. (America Online Inc. and its affiliates, subsidiaries and related corporations and entities shall be referred to herein collectively as "AOL");
WHEREAS, the plaintiffs commenced an action captioned National Federation of the Blind et. al. v. America Online, Inc., 99CV12303EFH, United States District Court for the District of Massachusetts ("Action"), in which the plaintiffs alleged that the "America Online internet service" is subject to the Americans with Disabilities Act, 42 U.S.C. 12101 et. seq. ("ADA") and further alleged that the "America Online internet service" is not in compliance with the ADA;
WHEREAS, AOL vigorously disputes and denies each of these allegations;
WHEREAS, AOL has publicly issued and posted on its website the "America Online Accessibility Policy";
WHEREAS, AOL has provided information regarding accessibility features to its publishers, designers and engineers in the "America Online Accessibility Checklist"; and
WHEREAS, AOL and the plaintiffs wish amicably to dismiss the Action without prejudice;
NOW, THEREFORE, in consideration of the mutual promises, acknowledgments and representations contained herein, the undertakings set forth herein, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Pursuant to its commitment to accessibility to persons with disabilities, AOL has taken the following actions:
(i) AOL has defined its corporate commitment to accessibility in the "America Online Accessibility Policy" and has posted that policy on its web site.
(ii) AOL has developed the "America Online Accessibility Checklist" to guide and educate its employees in making its services accessible.
(iii) AOL has entered into agreements, subject to confidentiality provisions, with screen reader technology companies relating to the development of products intended to be compatible with a new version of the AOL software described below.
2. AOL has informed the NFB that (i) AOL is in the process of designing a new version of its software ("AOL 6.0"), which is intended to be compatible with screen reader assistive technology and which AOL intends to release within the next 4-8 months; (ii) AOL is undertaking steps to render the existing and future content of the AOL-developed areas of the AOL- service largely accessible to the blind by converting the content to a format compatible with screen reader assistive technology, and intends to take many of those steps to coincide with the release of the AOL 6.0 software; (iii) as to certain exceptions (which the NFB acknowledges pose unusual technological difficulties), AOL intends to explore reasonable solutions consistent with its Accessibility Policy; and (iv) as with any software development effort, technological and/or commercial difficulties may interfere with the scope, timetable and success of the efforts outlined in this paragraph.
3. The parties agree to meet in a prompt and timely fashion to explore the feasibility of addressing the plaintiffs' concerns relating to (i) the accessibility to the blind of Netscape and CompuServe; and (ii) the specific exceptions referred to in paragraph 2(iii).
4. Upon the execution of this Agreement, the parties shall file with the Court the Stipulation of Dismissal without Prejudice attached hereto as Exhibit A.
5. Upon the filing of Exhibit A, the parties shall issue the press releases attached hereto as Exhibit B.
6. The plaintiffs hereby acknowledge and agree that, at no time prior to the first anniversary of the date of this agreement, shall they file or cause to be filed, in any state or federal court or with any state or federal agency, any action, claim, complaint or proceeding against AOL which alleges under the ADA, or any other state or federal statute or regulation, claims relating to the accessibility of AOL's products, services or online content.
7. Neither this Agreement nor any of its provisions shall be offered or received in evidence against any party hereto in any action or proceeding, except to enforce its terms. The plaintiffs' sole remedy with respect to their claims, if any, against AOL shall be limited to those remedies which the plaintiffs have or will have in the absence of this Agreement, and subject to the limitations contained in this Agreement. Specifically, the plaintiffs agree that they shall not bring any action, claim, complaint or proceeding against AOL alleging as a claim the failure of AOL to perform consistent with the information set forth in paragraph 2, nor shall the plaintiffs bring any action, complaint or proceeding against AOL arising from the plaintiffs' receipt of any of the information provided to them in the settlement discussions of this Action, including but not limited to the information set forth above in paragraph 2. Further, the plaintiffs hereby acknowledge and agree that the information set forth above in
 paragraph 2 is intended by AOL, and is understood by the plaintiffs, to be solely a characterization of AOL's current intentions and does not represent consideration underlying this Agreement.
1. 8. As to any party whom the NFB knows has commenced, filed or pursued any action, claim, complaint or proceeding against AOL, or intends to do so, in any state or federal court or with any state or federal agency which alleges, under the ADA or any other state or federal statute or regulations, claims relating to the accessibility of any of AOL's products, services or online content, the NFB and the National Federation of the Blind of Massachusetts, Inc. hereby acknowledge and agree that, at no time prior to the first anniversary of the date of this Agreement, shall they participate in, or give assistance in connection with, any such litigation.
9. It is acknowledged and agreed that no party to this Action purports to be or is the prevailing party in this Action, and that no party shall be entitled to any award of costs or expenses including, without limitation, attorneys' fees.
10. Nothing in the Agreement shall be construed as an admission on the part of the plaintiffs with respect to any claim that they have or might have in the Action or with respect to any defense of law or fact that AOL has or might have in the Action. Subject to the limitations set forth in paragraphs 6, 7, 8 and 15 of this Agreement, the plaintiffs (i) expressly assert that the AOL service described in the Action is subject to the provisions of the ADA and (ii) expressly reserve their rights to bring any action alleging violations of the ADA, or any state or federal statute or regulation relating to the accessibility of places of public accommodations or relating to the governmental procurement of technology with respect to any of AOL's products, services or online content. The parties agree that, subject to the limitations set forth in paragraphs 6, 7, 8 and 15 of this Agreement, nothing in this Agreement limits the rights of the plaintiffs to bring any action of any kind against AOL which otherwise is per
mitted by law.
11. Nothing in the Agreement shall be construed as an admission on the part of AOL with respect to any allegation of law or fact set forth in the Complaint filed in this Action. AOL (i) expressly denies that any of its products, services or online content, including the "AOL service" alleged in the Action is subject to the ADA; (ii) expressly reserves its rights, in response to any action alleging violations of the ADA, or any state or federal statute or regulation relating to the accessibility of places of public accommodation, to assert its defense that the ADA and/or such other state or federal statutes and regulations do not apply to any of AOL's products, services, or online content; and (iii) expressly reserves all other defenses to the Action, including but not limited to the defense that the Action is not well-founded in law or fact." The parties agree that, subject to the limitations set forth in paragraphs 7 and 15 of this Agreement, nothing in this Agreement limits the right of AOL to bring any
 action of any kind against the plaintiffs which otherwise is permitted by law.
12. This Agreement embodies the entire agreement and understanding between and among the parties hereto with respect to the subject matter hereof, and may not be changed, modified, amended, waived, discharged or terminated except by an instrument in writing signed by the authorized representative of the party (or, in the case of an individual, the person himself) against whom enforcement of such change, modification, amendment, waiver, discharge or termination is sought.
13. This Agreement is complete and is the only agreement of the parties hereto relating in any way to the subject matter hereof. No statements, promises or representations have been made by any party hereto, or relied upon by any party hereto, and no consideration has been offered, promised, expected or held out other than is expressly provided herein.
14. All of the parties hereto agree that they shall be deemed to have cooperated in the drafting and preparation of this Agreement. Hence, in any construction to be made of this Agreement, no provision thereof shall be construed against any party hereto on the basis that that party was the drafter.
15. The parties hereby acknowledge and incorporate in this agreement the Protective Order entered in this case on December 15, 1999. They expressly agree that their obligations thereunder are not extinguished by the dismissal of this Action. The parties further agree that this Agreement is intended to be a public document which is not subject to the Protective Order.
16. The parties and each of them acknowledge that they have been represented by legal counsel of their own choosing. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. has represented AOL. Brown, Goldstein & Levy, LLP, and Adler Pollock & Sheehan P.C. have represented the plaintiffs. The parties further acknowledge that their respective attorneys have reviewed this Agreement with them and explained its terms, and that each of them has carefully read this Agreement prior to signing it, understands and assents to all the terms herein, and is voluntarily entering into this Agreement.
America Online, Inc.

        
By:

National Federation of the Blind

        
By:

National Federation of the Blind of
   Massachusetts, Inc.

        
By:

        
Robert Baran

        
Steven Booth

        
Debra Delorey

        
Richard Downs

        
Priscilla Ferris

        
Theresa Jeraldi

        
Michael Kosior

        
Mary Ann Lareau

        
Brandy Rose

LITDOCS:1205441.1(P%4H01!.DOC)
07/26/00 11:23 AM



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