United States of America v. Ahold USA, Inc. and Peapod, LLC - Settlement Agreement

COMPLIANCE WITH TITLE III OF THE ADA

12. Website and Mobile Applications Accessibility Conformance: Peapod shall ensure full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations provided by and through www.peapod.com and its mobile applications according to the following timeline and requirements:

• a. By March 31, 2015, (the "Mobile Applications Conformance Date"), Peapod shall ensure that its mobile applications conform to WCAG 2.0 AA.

• b. By September 30, 2015, (the "Website Conformance Date"), Peapod shall ensure that www.peapod.com conforms to WCAG 2.0 AA. The Website Conformance Date and the Mobile Applications Conformance Date shall together be referred to as the "Conformance Dates" in this Agreement.

• c. After the Mobile Applications Conformance Date and the Website Conformance Date, as applicable, whenever a substantial proposed addition, update, or change to www.peapod.com or its mobile applications is made available to any group of Peapod users or customers (e.g., "Beta testing"), Peapod shall not release for public viewing or use those additions, updates, or changes until it has determined through automated and user testing that those proposed additions, updates, or changes conform to WCAG 2.0 AA and will not cause www.peapod.com or Peapod's mobile applications to fall out of conformance with WCAG 2.0 AA. This requirement applies to existing and new content on www.peapod.com and its mobile applications following the applicable Conformance Dates.

• d. The requirements set forth in Paragraphs (a) through (c) do not apply to advertisements provided by third parties or websites not owned or controlled by Peapod that are linked to http://www.peapod.com/unless the website at the link provides a function that is necessary to complete a transaction on www.peapod.com (e.g., payment, registration, or log-in).

• e. Third-Party Content.
  
  (i) Following the Effective Date of this Agreement, and for the term of this Agreement, for each new, renewed, or renegotiated contract with a vendor of Third-Party Content, Peapod shall seek a commitment from the vendor to provide content in a format that conforms to WCAG 2.0 AA or can be made to conform by Peapod to WCAG 2.0 AA. If during this contracting process Peapod issues a request for proposal for development or inclusion of Third-Party Content on its mobile applications or www.peapod.com, Peapod shall include conformance with WCAG 2.0 AA as a criterion. For Third-Party Content that is not subject to a written contract, Peapod shall seek out such content that conforms to WCAG 2.0 AA, which may include discussions with vendors to provide content in a format that conforms to WCAG 2.0 AA or can be made to conform by Peapod to WCAG 2.0AA.
  
  (ii) If, after following the process set forth above, Peapod is unable to obtain Third-Party Content that conforms to WCAG 2.0 AA, it shall demonstrate through its reporting to the United States, under Paragraph 21, that obtaining or providing conforming Third-Party Content would fundamentally alter the nature of its goods and services or would result in an undue burden.

• f. If the Department promulgates a final ADA Title III regulation setting out a website accessibility technical standard during the term of this Agreement, then the Parties shall meet and confer at the request of either party to discuss whether any modification to the terms of this Agreement regarding the technical standard is necessary to be consistent with the promulgated regulation and shall modify this Agreement accordingly.

13. Website Accessibility Coordinator: Within ninety (90) days of the Effective Date of this Agreement, Peapod shall designate an employee, who shall report directly to a Peapod, LLC executive, as the Website Accessibility Coordinator for www.peapod.com and its mobile applications. Peapod shall provide the name of and contact information for that person to the United States. The Website Accessibility Coordinator shall be:

• a. Knowledgeable with the requirements of Title III of the ADA, the WCAG 2.0, and website accessibility generally; and

• b. Responsible for coordinating Peapod's compliance with the requirements of this Agreement.

14. Website and Mobile Application Accessibility Policy: Within ninety (90) days of the Effective Date of this Agreement, Peapod shall:

• a. Adopt and implement the Website and Mobile Application Accessibility Policy, located at Exhibit A;

• b. Distribute the Website and Mobile Application Accessibility Policy to all website content personnel, technical support, and customer service representatives for www.peapod.com and its mobile applications;

• c. Provide, for the term of this Agreement, a copy of the Policy to each new employee or contractor whose responsibilities include website content or technical support; and

• d. Redistribute the Website and Mobile Application Accessibility Policy annually to all employees and contractors responsible for website content or technical support.

15. Website and Mobile Application Accessibility Feedback: Within ninety (90) days after the Effective Date of this Agreement, Peapod shall provide a notice, prominently and directly linked from the www.peapod.com homepage, with a statement of Peapod's policy to ensure that persons with disabilities have full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of Peapod through www.peapod.com and its mobile applications. The notice shall include a toll-free telephone number where customers with disabilities who are experiencing technical difficulties with the website or mobile applications can call for assistance. The notice will also solicit feedback from visitors to http://www.peapod.com/and its mobile applications on how website accessibility can be improved. The notice shall provide several methods to provide feedback, including an email address and a toll-free phone number to contact representatives knowledgeable about the Website and Mobile Application Accessibility Policy.

16. Modification of Bug Fix Priority Policies: By the Mobile Applications Conformance Date and the Website Conformance Date, respectively, Peapod shall modify existing bug fix policies, practices, and procedures to include the elimination of bugs that create accessibility barriers, including those that create nonconformance with WCAG 2.0 AA, to www.peapod.com and its mobile applications ("Modified Bug Fix Priority Policies"). The Modified Bug Fix Priority Policies shall ensure that any bugs that create accessibilitybarriers to www.peapod.com and its mobile applications are remedied with the same level of priority (e.g., speed, resources used to remediate) as any other equivalent loss of function for individuals without disabilities. Peapod shall provide the Modified Bug Fix Priority Policies for review and comment by the United States no later than ten (10) business days before implementing those policies.

17. Automated Website and Mobile Application Accessibility Testing: By the Mobile Application and Website Conformance Dates, respectively, Peapod shall obtain an automated accessibility testing tool acceptable to the United States and shall evaluate conformance of www.peapod.com and its mobile applications with WCAG 2.0 AA. Peapod shall conduct automated accessibility tests of www.peapod.com and its mobile applications at least once every six months after the Mobile Application and Website Conformance Dates for the term of this Agreement to identify any instances where www.peapod.com and its mobile application is no longer in conformance with WCAG 2.0 AA. Peapod shall transmit the results of such tests to the United States pursuant to its reporting obligations in Paragraph 22.

18. Website and Mobile Application Accessibility Consultant and Evaluation:

• a. Within ninety (90) days after the Effective Date of this Agreement, Peapod shall retain an independent consultant ("Website Accessibility Consultant"), approved by the United States, who is knowledgeable about accessible website development, Title III of the ADA, and WCAG 2.0. The Website Accessibility Consultant's duties shall include: (1) advising Peapod on how to conform www.peapod.com and its mobile applications to WCAG 2.0 AA; (2) verifying that www.peapod.com and Peapod's mobile applications conform to WCAG 2.0 AA by the applicable Conformance Date; and (3) establishing the criteria for selecting testers with disabilities and reviewing the results of the tests.

• b. In addition to the duties set forth in Paragraph 18.a. above, on each anniversary date of the Website Conformance Date and the Mobile Applications Conformance Date, the independent Website Accessibility Consultant shall conduct and provide the parties with a written evaluation of www.peapod.com and Peapod's mobile applications' conformance with WCAG 2.0 AA (the "Accessibility Evaluation"). In the Accessibility Evaluation, the Website Accessibility Consultant shall make recommendations to improve the accessibility of http://www.peapod.com/ and its mobile applications.

19. User Accessibility Testing Group: By the applicable Conformance Date and at least once annually for the term of this Agreement after the Conformance Dates, tests shall be conducted by individuals with different disabilities, including at a minimum individuals who are blind or have low vision, individuals who are deaf or hard of hearing, and individuals who have physical disabilities affecting manual dexterity (such as those limiting the ability to use a mouse). Testing required by this Paragraph shall include the usability of the pages that are essential to the use of http://www.peapod.com/ by customers and the public, such as the webpages provided to create an account, log-in, view goods, select items and place them in the virtual shopping cart, check out and pay for items in the virtual shopping cart, and schedule delivery or pick-up.

20. Website and Mobile Application Accessibility Training: By March 31, 2015, and at least once annually thereafter for the term of this Agreement, Peapod shall provide training to website content personnel on how to conform web content and mobile applications with, at minimum, WCAG 2.0 AA, the provisions of Title III of the ADA identified in this Agreement, and the terms of this Agreement. Website content personnel shall also receive this training when they are hired into a position that includes such a role.