Location Based Services Terms
and Conditions
1
Introduction
1.1 The Vodacom customer shall comply with these terms
and conditions and shall continue to be bound by the Memorandum of Agreement.
In the event of any conflict or inconsistency between the provisions of the
Memorandum of Agreement, these Location Based Services terms and conditions
(“the terms and conditions’), and/or in the Code of Conduct, and/or in the
WASPA code of conduct (unless specifically and expressly otherwise provided in
the Memorandum of Agreement), the provisions of the Memorandum of Agreement
shall prevail followed by these terms and conditions, the WASPA Code of
Conduct.
1.2 Until further notice Vodacom customers will be able
to request the location of Vodacom and MTN end users. The location of Cell C,
Telkom and any other Network Operators will not be possible.
2
Definitions
There are typically three types of LBS requests called active, passive
and tracking requests. Similarly,
Vodacom customers will typically deploy three types of LBS services.
2.1 Active Location Based Services
2.1.1
“Active LBS”
means those LBS services that are initiated by an end user utilising a mobile phone, and the response is sent by the
Vodacom customer, using the location
of the mobile phone. In most cases the
Requestor/A-party will be the
Target/B-party. These
services are also sometimes known as “pull” services.
2.1.2
Active LBS involves the end user requesting an LBS
service that relies on the end user’s own geographical location for completion
of the LBS service. Examples include
finding places of interest, local news or weather forecasts and the like. There
is an implicit consent to location-based information being analyzed and
possibly passed on to a Vodacom customer or other third party (such as a
third-party data base provider or content provider) if necessary
to provide the LBS service.
2.2
Passive Location Based Services
2.2.1
“Passive LBS”
means those LBS services where an end user (the Target/B-party), once s/he has
enabled an LBS service, consents to being located by a Vodacom customer to
provide an LBS service to which the Target/B-party has subscribed.
2.2.2
Passive LBS is initiated by the Vodacom customer
rather than the end user, but based on the Target/B-party’s request for an LBS
service, such as traffic or weather information to be provided on a regular
basis, as opposed to once off requests. In order for the Vodacom customer to
provide the LBS service (such as local traffic update at 07h00 each morning
before the end user leaves for work) the Vodacom customer must confirm the
Target/B-party’s location.
2.2.3
Deploying passive LBS services requires the B-Party
to give consent by subscribing to a specific LBS service. In most cases the
Requestor/A-party will be the Target/B-party.
2.3
Tracking Location Based Services
2.3.1
Access to LBS for the Tracking Location Based Services
is to be used when the end user i.e. the Target/B-party, has firstly enabled a
service and provided consent to being located by another party or the
requestor. This indicates an existence
of a relationship between the A-Party and the B-Party that is governed firstly,
by the need for the service by the B-party which the B-party exercises by
enabling the service and secondly providing the express consent to confirm
such.
2.3.2
Tracking LBS services involve locating a
Target/B-party as requested by a Requestor/A-party based on the location of the
SIM card associated with the Target/B-party, either on its own or as part of a
combination of technologies.
2.3.3
Emergency tracking by means of the Vodacom LBS
service will therefore only be allowed if the B-party, has firstly enabled such
a service and has provided consent to be located by the A-Party, which then
eliminates the sense of emergency because the relationship and consent would
have been pre-existing and the A-Party can locate the B-party whenever required
including in cases of emergency.
2.3.4
All references in this document to these Terms and
Conditions shall be deemed to include a reference to the audit criteria
recorded in the LBS Audit Criteria document.
3
Memorandum of Agreement and Vodacom’s
prerequisites
3.1 The Vodacom customer shall comply with these Terms
and Conditions and shall continue to be bound by the Memorandum of Agreement.
In the event of any contradiction between these Terms and Conditions and the
Vodacom Memorandum of Agreement, then these Terms and Conditions shall take
precedence. The phrases used in these Terms and Conditions shall, unless the
context clearly indicates otherwise, have the same meaning as assigned to them
in the Vodacom Memorandum of Agreement. It is recorded that the definition of
“the Applications” in the Vodacom Memorandum of Agreement shall be deemed to
include location-based type services.
3.2 Prior to the Vodacom customer being permitted to
make use of LBS services (and at all times after approval from Vodacom may have
been obtained), the Vodacom customer shall be required to adhere to Vodacom’s
prerequisites, including but not limited to the following:
3.2.1 No judgments
shall have been recorded against the Vodacom customer.
3.2.2 The Vodacom
Memorandum of Agreement and the application form to which these Terms and
Conditions are attached must have been properly completed and executed by the
Vodacom customer.
3.2.3 The Vodacom
customer must never have been declared insolvent.
3.2.4 The Vodacom
customer shall generate a minimum volume of LBS traffic as may be determined by
Vodacom from time to time.
3.2.5 Location Based
Services will only be available to business partners who have an agreement with
Vodacom.
3.2.6 The Vodacom
customer must not have any record of business rule contravention with Vodacom
or WASPA in the last six months.
3.2.7 In the event of
a Vodacom customer using Location Based Services for any fraudulent purpose or
for any other purpose for which it was not intended, Vodacom shall be entitled
to immediately terminate the agreement. In terms of the law, Vodacom is obliged
to report fraudulent activities to the police.
3.2.8 All monies
owing, due and payable to Vodacom by the Vodacom customer at date of
application for Location Based Services must be settled in full.
3.2.9 The Vodacom
customer is not allowed to use a Vodacom logo, trademark, slogan or any other
device or form of intellectual property belonging to Vodacom in advertising
without the prior written consent of Vodacom.
3.2.10 Such other
prerequisites as Vodacom may determine and advise the Vodacom customer of from
time to time.
3.3 In the event of the Vodacom customer using LBS for
any fraudulent or mala fide purpose or for any other purpose for which it was
not intended, then Vodacom shall be entitled, immediately and without notice,
to suspend the Vodacom customer’s right to use LBS.
3.4 Prior to approving the application by the Vodacom
customer to deploy LBS services (and at all times after approval may have been
obtained), Vodacom shall at its sole and
absolute discretion (and by whatever means as Vodacom may deem appropriate
including but not limited to random tests) be entitled but not obliged to
determine whether the Vodacom customers’ systems are sufficiently secure and
whether the processes by which the Vodacom customer communicates with the SGP,
are appropriate and sufficiently secure.
3.5 Prior to being permitted to deploy LBS services the
Vodacom customer shall be required to submit a certificate from an independent
and accredited IT audit company confirming that it complies with these Terms
and Conditions, in particular Vodacom’s prerequisites referred to in clause 3.2
above and the Regulatory and Technical criteria stipulated by Vodacom pursuant
to clauses 4 and 5 below, as well as the specific audit criteria referred to in
the LBS Audit Criteria document.
3.6 The cost of the audit referred to in clause 3.5
above shall be for the Vodacom customer’s account, and Vodacom shall be
entitled to require the Vodacom customer to have similar audits carried out on
its systems at such intervals as Vodacom may determine. The production of an
audit certificate as envisaged in clause 3.5 above shall not necessarily mean
that the Vodacom customer’s application to deploy LBS services shall be
approved.
3.7 In the event that the Vodacom customer in any manner
prevents Vodacom from exercising its rights as detailed in Clause 3.4 above,
whether prior to or after the deployment of LBS services, then Vodacom shall be
entitled to reject the Vodacom customer’s application to deploy LBS services or
once deployed, to immediately and without notice suspend the Vodacom customer’s
right to use LBS services.
3.8 In the event that Vodacom determines (as it in its
sole and absolute discretion may do) that the Vodacom customer cannot or has
not complied, or can no longer comply with these Terms and Conditions, then
Vodacom may immediately and without notice reject the Vodacom customer’s
application to deploy LBS services or once deployed, immediately and without
notice suspend the Vodacom customer’s right to use LBS services.
3.9 The Vodacom customer shall be required to make
separate applications for each LBS service that it desires to launch, each of
which shall be considered by Vodacom separately.
4
Regulatory Criteria
4.1 The privacy of the end user must be protected at all
times, and under no circumstances may the end user’s location or details be
provided to any third party, entity or application without that end user’s
specific and express consent to Vodacom for the specific and identified third
party, entity or application to receive such information.
4.2 Authorisation / consent
4.2.1 The end user’s
location may not be used or divulged to 3rd parties, unless the end
user gives his prior specific authorisation / consent to the Vodacom customer
per each individual third party attempting to locate them – either in writing
(subscription services) or electronically (via website, SMS, USSD etc.) subject
to the condition that the end user can be successfully authenticated.
4.2.2 Consent always
needs to be specific in that the end user has to know exactly what s/he is
consenting too. Consent must be on a service-by-service basis.
4.2.3 No anonymous Requestors/A-parties
will be allowed, as the Target/B-party should always have authorised the
capability of being located by the specific A-party either during subscription
or on a once-off basis.
4.2.4 In the case of
Active LBS and Passive LBS services, discrete authorizations can be done each
time an LBS service is requested and there is no issue with an ongoing consent,
as in the case of tracking LBS services. In the case of certain proposed
emergency LBS services (which display a combination of features of Active LBS
and Tracking LBS services) discrete authorizations can be obtained using an
interactive voice system so as to fall within the ECT Act.
4.2.5 In the
circumstance where there are two separate end users for one SIM card, i.e. the
owner of the contract/SIM card and the user of the SIM card – e.g. where an
employer signs a contract for a SIM card, which is in turn used by an employee,
then the consent of the end user in de facto control of the handset
and thus the recipient of the telecommunications service must be sent to
Vodacom.
4.2.6 In order for
consent to be extended an "opt-out" reminder must be sent on a 30 day basis to the Target/B-party.
4.2.7 The
Target/B-party may withdraw the authorisation or opt-out at any time and must
be able to suspend the authorisation for either a fixed or indefinite period
should the Target/B-party instruct Vodacom to do so.
4.3
Other conditions
4.3.1 The
Target/B-party must be able to opt-out of being located at any time that s/he
wishes to do so.
4.3.2 It should
further be possible for a Target/B-party to specify the period of the day or
day(s) of the week, month(s) or year during which a specific Requestor/A-party
will be authorised to locate him/her and should only be located by the relevant
Requestor/A-party during this period.
4.4
Registration
4.4.1 The Vodacom
customer, the A-party (party requesting the location information) and the
B-party (end user being located) must register for the service with
Vodacom.
4.4.2 Especially with
regard to Tracking LBS services with regard to a person, the Target/B-party must
be invited to register with the Vodacom customer and to add
Requestors/A-parties who may use the LBS service to locate the Target/B-party.
The Target/B-party must then be able to choose the period of "each
occasion" before the authorisation will expire and must renew at. The
target/B-party can be given the option of a variety of different time periods
by which to renew his consent, provided that the maximum period shall be no
longer than 30 days.
4.5
Record storing
The Vodacom customer must ensure that all communication with the end user and
Vodacom’s SGP are properly recorded and stored for as long as the Vodacom
customer is legally required to do this. If there is no legal requirement, the
Vodacom customer should store the collected information for a minimum period of
5 years.
4.6
Vodacom customer: Authentication
The Vodacom customer will be authenticated by Vodacom on each request for
location information in accordance with the process set out above.
4.7
Warranties and Disclaimers
4.7.1
Vodacom does not give any warranties with regard to
the accuracy of the LBS services and the Vodacom customer must ensure that no
such warranties are given to the end users.
4.7.2
Disclaimers must be in place in the contracts
between the Vodacom customer, and the A-party and B-party. Some form of
disclaimer must also appear within all advertising relating to LBS. The following disclaimer is suggested:
Disclaimer
a.
Neither [name of Vodacom customer], Vodacom (Pty) Ltd or any of their
affiliate companies, agents, distributors, members, officers, agents,
directors, employees, servants or the like shall assume responsibility or be
liable for any losses, costs, damages, expenses, claims, (whether direct,
indirect, special or consequential), or injuries or death, incurred or
sustained by any person, whether arising directly or indirectly from the use or
misuse by any person of, or the provision by [name of Vodacom customer] or
Vodacom of, or failure by [name of Vodacom customer] or Vodacom to provide, the
location based service.
b.
You acknowledge that the accuracy of the location
service is determined by the density of the cell centroid which will vary from
one cell to another. You acknowledge that the Vodacom cannot guarantee and
shall not be responsible for the accuracy of the service. You acknowledge and
accept that quality and coverage of the service shall be limited to that
provided by the Vodacom and the services may, from time to time, be adversely
affected by physical features such as buildings and underpasses, as well as
atmospheric conditions and other causes of interference.
4.8
End User Education
End Users must be advised that should they use an LBS service their location
information will be used by and disclosed to the Vodacom customer, but will
only be used for the specific purposes for which they have provided
consent.
5
Technical, Billing and Other Criteria
In order for the Vodacom customer to deploy LBS services, it shall adhere to
Vodacom’s technical and billing criteria and/or specifications as may be stipulated
and amended by Vodacom from time to time, as well as such other criteria,
including but not limited to advertising criteria, as determined by Vodacom
from time to time.
6
Amendment of these Terms and Conditions
Vodacom shall be entitled to amend and/or vary and/or supplement these
Terms and Conditions on 7 (seven) days written notice to the Vodacom customer,
and the Vodacom customer shall upon receipt of such notice be deemed to be
bound thereto.
7
Fees and Payment
The Vodacom customer shall be responsible for the payment to Vodacom of
such fees as the parties shall agree to prior to launch of the LBS services.
The existing Vodacom customer bearer fees and tariff bands will continue to be
applicable.
8
Third parties
The Vodacom customer shall ensure that in any agreement it enters into
with any of its sub-contractors, agents, partners, suppliers or the like
regarding any matter relating to the LBS Services, or should any of the Vodacom
customer’s rights as provided for herein be exercised through such persons,
then it shall bind such persons to the same obligations to which it is bound in
terms of these terms and conditions, as may be applicable in the circumstances,
and shall ensure that their exercise of such rights do not contravene these
terms and conditions. Furthermore the Vodacom customer
shall be responsible for the acts or omissions of such persons that contravene
these terms and conditions.
9
Security and Risk
Under
no circumstances can the LBS platform be used for location
based services related to Law Enforcement or Police investigations. No
Company or individual cell phone can be tracked unlawfully. The Regulation of
Interception of Communications and provision of Communication-related
Information Act, 2002 (“the Interception and Monitoring Act’) supersedes any
provision made for any legal disclosure of location based
information, of which section 7 and 8 make provision for the disclosure in
certain circumstances for LBS:
• Section 7: Interception of Communication
to prevent serious bodily harm.
• Section 8: Interception of Communication
for purposes of determining location in case of emergency.
Law
Enforcement agencies rely on the provisions of the Interception and Monitoring
Act to obtain any information from Vodacom.
The Police Services have established units within their structures which
are responsible for interfacing with Vodacom and Vodacom explicitly only deals
with this unit i.e. OCIM OFFICE – i.e. OFFICE COMMUNICATION, INTERCEPTION &
MONITORING. Any Police officer that
requires any information approaches this office (OCIM) and the OCIM OFFICE
authenticates the request and is responsible for making contact with Vodacom in
accordance with all applicable rules and procedures.
Private
investigators have no power whatsoever to use Vodacom’s LBS platform to provide
services to third parties for tracking purposes. Tracing of handsets and tracing MSISDN
numbers without any consent is a clear breach of the Interception and
Monitoring Act, and Vodacom customer’s having access to LBS and using of it for
unlawful purposes will be suspended immediately.
Any person or any employee of Vodacom that intentionally discloses
information in contravention of the Interception and Monitoring Act, or
unlawfully intercepts communication, will face a fine of up to R200 000 or
imprisonment for a period not exceeding 10 years
For further enquiries please contact
Internal WASP:
Office
Number: 082 178 66
E-mail:
vodacomwasp@vodacom.co.za