The Accessibility for Ontarians with Disabilities Act

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The Accessibility for Ontarians with Disabilities Act, 2005 (the "Act") was enacted in 2005. The Act recognizes "the history of discrimination against persons with disabilities in Ontario" and has, as its primary purpose, benefiting all Ontarians by "developing, implementing and enforcing standards to achieve accessibility for Ontarians with disabilities with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises".

The Act provides the authority and framework for the creation of the Standards, which are implemented as regulations to the Act and must be complied with by those to whom each of the Standards applies. At present, the five Standards are customer service (the "Customer Service Standard"), information and communications (the "Information and Communications Standard"), employment (the "Employment Standard"), transportation (the "Transportation Standard"), and built environment (the "Built Environment Standard"). Of the five, only the Customer Service Standard is in full force.

Pursuant to the Act, each of the Standards must:

"set out measures, policies, practices or other requirements for the identification and removal of barriers with respect to goods, services, facilities, accommodation, employment, buildings, structures, premises or such other things as may be prescribed, and for the prevention of the erection of such barriers".

A ‘barrier’ is defined in the Act as:

"anything that prevents a person with a disability from fully participating in all aspects of society because of his or her disability, including a physical barrier, an architectural barrier, an information or communications barrier, an attitudinal barrier, a technological barrier, a policy or a practice".

The definition of ‘disability’ in the Act is very broad and not limited to physical disabilities. The Act defines ‘disability’ as:

"(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997".

The Act "applies to every person or organization in the public and private sectors of the Province of Ontario". Each Standard contains specific applicability criteria.

Aside from compliance with the Standards, the Act also requires that a certified accessibility report, containing information prescribed by each Standard and in a form set by the Minister of Community and Social Services, is filed annually, or at such other times as specified by a director. The additional obligation to provide information relating to the compliance of a person or organization with the Standards arises upon request by a director.

Note that the Standards are required to be reviewed at least every five years. Such reviews may result in additional requirements.

The Customer Service Standard

The Customer Service Standard took effect with respect to the public sector on January 1, 2010 and the private sector on January 1, 2012. The Standard concerns the provision of goods and services in a manner that accommodates persons with disabilities. It applies to every person or organization (public or private, including not for profit) that (1) has at least one employee in Ontario; and (2) provides goods or services directly to the public or to a third party. The application to third parties covers other businesses, the government, or other organizations. This, for example, includes a manufacturer, wholesaler or a training firm hired by an organization.

As a general overview, the Customer Service Standard requires that every provider of goods and services to which the Customer Service Standard applies must:

  1.  establish policies, practices and procedures governing the provision of its goods and services to persons with disabilities;
  2. use reasonable efforts to ensure that the policies, practices and procedures are consistent with the principles of independence, dignity, integration and equality of opportunity;
  3. ensure that the policies deal with the use of assistive devices by persons with disabilities in obtaining, using or benefiting from the provider’s goods or services, and include the availability, if any, of other measures that enable a person with a disability to obtain, use, or benefit from the provider’s goods or services;
  4. communicate with a person with a disability in a manner that takes into account the person’s disability;
  5. if a person with a disability is accompanied by a guide dog or other service animal, ensure that the person is permitted to be accompanied by the animal in the public areas of the provider. If the service animal is excluded by law from the premises, the provider shall ensure that other measures are available to enable the person with a disability to obtain, use or benefit from the provider’s goods or services;
  6. if a person with a disability is accompanied by a support person, ensure that the person is permitted to be accompanied by the support person;
  7. where admission fees are charged, provide advance notice of any fees that must be paid by a support person;
  8. provide notice to the public when facilities or services that persons with disabilities rely on to obtain, use or benefit from a provider’s goods or services are temporarily disrupted. Notice must include information about the reason for the disruption, its anticipated duration, and a description of any alternative facilities or services that are available;
  9. train every person that interacts with the public or other third parties on behalf of the provider on topics outlined in the Customer Service Standard;
  10. train every person that participates in the development of the provider’s policies, practices and procedures governing the provision of goods or services to members of the public or other third parties on topics outlined in the Customer Service Standard; and
  11. establish a process for receiving and responding to feedback about the manner in which goods or services are provided to persons with disabilities by the provider. Make the information about the feedback process readily available to the public.

For providers to which the Act applies and which have at least twenty employees, the provider must also

  1. prepare documents describing the policies, practices and procedures required under the Customer Service Standard and provide the documents to any person upon request;
  2. prepare documents, and provide them to any person upon request, that
    a. concern service animals and support persons;
    b. set out the steps to be taken in connection with a temporary disruption; and
    c. describe the provider’s feedback process;
  3. notify customers that documents required under the Customer Service Standard are available upon request;
  4. when giving documents required under the Customer Service Standard, provide the information in a format that takes into account the person’s disability;
  5. prepare a document that describes the provider’s training policy, including a summary of the contents of the training and details of when the training is to be provided; and
  6. keep records of the training provided, including the dates on which the training is provided and the number of individuals to whom it is provided.
  7. All of these requirements, which are elaborated on in the Customer Service Standard, should have been complied with as of January 1, 2012.

The Other Standards

O. Reg. 191/11, the Integrated Accessibility Standards, contains all of the Standards except for the Customer Service Standard and the part of the Built Environment Standard, which is still under development and will include amendments to the Ontario Building Code. With respect to the private sector, most of these provisions are not yet applicable. Currently, all employers must provide individualized workplace emergency response information to employees who have a disability if the disability is such that the individualized information is necessary and the employer is aware of the need for accommodation. In addition, all organizations under the Integrated Accessibility Standard that make emergency procedures, plans or public safety information available to the public must, upon request, provide such information in an accessible format.

With some exceptions, the remaining provisions in the Standards (other than the Customer Service Standard and the Built Environment Standard) will periodically take effect in the private sector starting on January 1, 2014 for large organizations (50 of more employees) and January 1, 2015 for small organizations.

December 31, 2012 Reporting Deadline

Every provider of goods or services to which the Customer Service Standard applies, aside from a designated public sector organization, must file an annual accessibility report if the provider has twenty or more employees. The deadline for filing the first report was December 31, 2012. In determining the number of employees a provider has, all full-time, part-time, seasonal and contract employees must be included, and all volunteers, independent contractors, sole proprietors and the partners in a partnership are excluded.

To report, a provider answers fifteen yes or no questions concerning compliance with the Standard. A statement certifying that all required information has been provided and is accurate must be included in the report. This statement must be signed by a director, senior officer or other person with authority to bind the organization. The accessibility report is then submitted online.

See the "How to complete your Accessibility Compliance Report" guide for more information, including the questions to be answered and the process for registration of an account with One-key. A copy of the questions has also been attached to this Client Alert. The guide can be found at http://www.mcss.gov.on.ca/documents/en/mcss/accessibility/ACR_reporting_guide.pdf.

Following the coming into force of section 86.1 of O. Reg. 191/11 on January 1, 2013, and subject to exemptions or agreements with the Ministry of Community and Social Services (the "Ministry"), private sector organizations with less than fifty employees will not be required to file an accessibility report for either the Customer Service Standard or any of the Integrated Service Standards after the initial report due on December 31, 2012. Subject to the same exceptions, after the initial report due on December 31, 2012, large organizations (fifty employees or more) will be required to file an accessibility report regarding the Standards by December 31, 2014 and then again every three years.

Penalties for Noncompliance with the Act

Non-compliance can result in monetary administrative penalties and, upon conviction in court, significant fines. The website of the Ministry states,

"Our first goal is always to help organizations meet their accessibility requirements. We are here to help you meet your commitments with educational tools and templates that will make it easier for you to understand what you need to do and how to do it.

For organizations that persist in not meeting their obligations, the government has the power to conduct inspections, assign monetary penalties and prosecute through the courts".

Though this may suggest a policy of leniency for inadvertent non-compliance, this statement is not law and offers no guarantee on the course of action that the Ministry will take against a person or organization that does not comply with the Act or the Standards. The Ministry can determine compliance by conducting inspections under the Act.

For noncompliance with a Standard, the requirement to file an accessibility report, or the requirement to provide additional information, a director has the power to simply order compliance. In addition to, or in the alternative, a director may also order a monetary administrative penalty in accordance with the regulations. The director is to consider the severity of the impact of the contravention and the contravention history of the person or organization and use a schedule to determine the range. The regulation provides considerations for making a determination under these two factors. For individuals and unincorporated associations, the penalty ranges from $200 to $2,000. In severe cases a director can impose the penalty on a daily basis up to a maximum of $50,000. For corporations, the penalty ranges from $500 to $15,000, and in severe cases a director can impose the penalty on a daily basis up to a maximum of $100,000. Note that the Act requires a notice to be issued to the offending person or organization prior to making an order. This allows the person or organization to make written submissions in response, though this does not prevent a director from then making an order.

Failure to comply with an order made by a director or a tribunal designated under the Act, such as a compliance order or payment of an administrative penalty; furnishing false or misleading information in an accessibility report or to a director; obstructing an investigation under the Act; or intimidating, coercing, penalizing or discriminating against a person because the person sought to enforce the Act, cooperated with inspectors or, provided information under the Act is an offence under the Act. A person found guilty of an offence can be fined up to $50,000 for each day or part of a day on which the offence occurred or continues to occur. For corporations the amount is $100,000 for each day or part of a day.

Every officer and director must also be aware that failure to take all reasonable care to prevent the corporation they act for from committing an offence described in the preceding paragraph is guilty of an office and on conviction is liable for a maximum fine of $50,000 for each day or part of a day on which the offence occurs or continues to occur.

If you have not yet filed an accessibility report for 2012 we recommend you do so now. Compliance with all applicable requirements in the Standards is also advised. Please contact us if you or your organization have any questions or require assistance with respect to the Accessibility for Ontarians with Disabilities Act or any of the Standards.

Accessibility Report Questions – Customer Service Standard

  1. Does your organization have policies, practices and procedures on providing goods or services to people with disabilities? (Yes/No)
  2. Does your organization use reasonable efforts to ensure that these policies are consistent with the principles of independence, dignity, integration and equality of opportunity? (Yes/No)
  3. Do your organization’s policies address the use of assistive devices by people with disabilities to access your organization’s goods or services, or any available alternative measures that enable them to do so? (Yes/No)
  4. Do your organization’s policies, practices and procedures require your organization to take a person’s disability into account when communicating with the person? (Yes/No)
  5. Do members of the public or other third parties have access to premises that your organization owns or operates? (Yes/No)*If your answer is No, skip to question 9 below. (Do not answer questions 6, 7 and 8.)
  6. Does your organization permit people with disabilities to keep their service animals with them on the parts of your premises that are open to the public or other third parties, except where the animal is excluded by law, and is this included in your policies, practices and procedures? (Yes/No)
  7. If a service animal is excluded by law from your premises, does your organization ensure that alternate measures are available to enable the person to access your goods or services? (Yes/No)
  8. Does your organization permit people with disabilities to enter the parts of your premises that are open to the public or other third parties with their support person, and provide notice of any fee charged for the support person, and is this included in your policies, practices and procedures? (Yes/No)
  9. Does your organization post a notice at a conspicuous place on your premises, on your website, or by another reasonable method, of any temporary disruption in facilities or services that people with disabilities usually use to access your organization’s goods or services, including the reason, duration and any alternatives available? (Yes/No)
  10. Has your organization established and documented a process to receive and respond to feedback on how its goods or services are provided to people with disabilities, including actions that your organization will take when a complaint is received? (Yes/No)
  11. Does your organization make information about its feedback process readily available to the public, including how feedback may be provided (e.g. in person, by telephone, in writing, by email, on diskette or otherwise)? (Yes/No)
  12. Does your organization ensure that the following people receive training about providing your goods or services to people with disabilities: every person who deals with the public or other third parties on behalf of your organization, and every person who participates in developing your organization’s policies, practices and procedures on providing goods or services? (Yes/No)
  13. Does this training include your organization’s current policies, practices and procedures required under the Customer Service Standard and all the topics listed in section 6(2) of the standard? (Yes/No)
  14. Does your organization have a written training policy that includes a summary of the contents of the training (per question 11 above) and details of when the training is to be provided, and does your organization keep records of the dates that training was provided and how many people were trained? (Yes/No)
  15. Does your organization post a notice at a conspicuous place on your premises, on your website, or by another reasonable method, that the documents required by the Customer Service Standard are available upon request, and do you provide those documents in a format that takes a person’s disability into account? (Yes/No)

This Client Alert is published by Dickinson Wright LLP to inform our clients and friends of important developments in the field of labor and employment law. The content is informational only and does not constitute legal or professional advice. We encourage you to consult a Dickinson Wright attorney if you have specific questions or concerns relating to any of the topics covered in here.

FOR MORE INFORMATION CONTACT:

W. Eric Kay is a Partner in Dickinson Wright’s Toronto office. He can be reached at 416.777.4011 or ekay@dickinsonwright.com.

Andrew J. Skinner is a Partner in Dickinson Wright’s Toronto office. He can be reached at 416.777.4033 or askinner@dickinsonwright.com.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dickinson Wright | Attorney Advertising

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JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

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Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

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Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

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How is your information shared?

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How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

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Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
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    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
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There are different types of cookies and other technologies used our Website, notably:

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JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
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Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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