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 3^rd 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