Exhibit 10.61
Translated From Japanese
Business Assignment Contract
KDDI (hereinafter called "A") and Global Hotline, Inc. (hereinafter called "B")
hereby make an agreement concerning the entrusting and acceptance of obtainment
of applications and others relating telecommunication services and so forth
(hereinafter called "These Services") as stipulated in the separate sheet.
[The Business]
Article 1 A shall entrust B with the business stipulated in each of the
following sections (hereinafter called "The Business") for the
purpose of promoting the utilization of These Services and B shall
accept it. The details shall be stipulated in the separate sheet.
(1) Business to obtain the applications for These Services and
respond to the customers by telemarketing
(2) Affairs pertaining to the previous section
[The Course of Accomplishment of Business]
Article 2 A and B shall execute the operation guidebook (inclusive of scripts,
guide, and manual) regarding the course of accomplishment of The
Business.
2 B shall accomplish The Business following the operation
guidebook in the previous section with the due care of a good
manager.
3 A and B shall determine the goals for obtaining applications
concerning The Business. The goals for obtaining applications
through The Business shall be set as stipulated in the separate
sheet except for the case in which any special agreement is
provided in the current contract or other agreement in writing
between A and B.
4 If A recognizes that the methods and others to accomplish The
Business by B is inappropriate, or judges that it is difficult
to achieve the goals in the previous section, A can request B to
improve the methods and so forth to accomplish The Business and
B shall have to improve them immediately in response to it.
5 B shall operate The Business in the areas that A shall
designate. A shall be able to designate the areas at any time
and B shall accept them immediately.
[Responding to Customers]
Article 3 If the customers directly or indirectly made inquiries of B in its
accomplishing The Business, it shall have to immediately report to A
on them, respond to and process them on its own responsibility.
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. OMITTED TEXT IS INDICATED BY AN
"*".
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[The Places, Dates, and Timeslots of Accomplishment of The Business]
Article 4 The places, dates, and timeslots of accomplishment of The Business
shall be stipulated in the separate sheet.
[The Employees Engaged in The Business]
Article 5 B shall determine its employees to be engaged in The Business
(hereinafter called "The Employees engaged in The Business") and
notify A of them in writing in the form A shall designate if it
requests for them.
2 B shall, in advance, select a person to take charge of The
Business and notify A of it in writing in the form A shall
designate. It shall also do the same upon changing it. However,
it shall not be allowed to appoint any temporary employee such
as a part-timer as the person in charge of it.
3 A shall determine the methods to accomplish The Business and the
other items necessary for B to accomplish it through conferences
between the person in charge stipulated in Section 2.
4 B shall make The Employees engaged in The Business observe the
obligations stipulated in the current contract, and take all
responsibilities concerning the accomplishment of The Business
by The Employees engaged in it. If an Employee engaged in The
Business caused damage to A, B should take the responsibility
for it jointly with the person in charge of it even if it did
not neglect to pay appropriate attention concerning the
selection and supervision of him or her.
[Responsibility for the accomplishment of The Business]
Article 6 B shall bear all the responsibility regarding the accomplishment of
The Business and if it should receive any protest or complaint from
a customer, or if it should cause damage to A or its employees,
customers, or the other third parties, or if it should cause a
dispute, B shall immediately report it to A and concurrently process
all the matters on its own responsibility and at its cost not to
cause any trouble to A.
2 If a customer or another third party should make any appeal, or
protest or claim against A proceeding from B's performance to
accomplish The Business, B shall defend A from it or cooperate
with A to resolve it. In case A should suffer any damage due to
this dispute or else, if B is to be blamed for the cause, B
shall be liable to compensate A for the damage, and the damages
shall be determined through conference between A and B.
[Responsibilities pursuant to Labor Laws]
Article 7 B shall observe the acts and rules in pursuant to the Labor
Standards Law, the Workers' Accident Compensation Insurance Law, the
Health Insurance Law, the Employment Insurance Law and others, and
bear all the responsibilities stipulated in these laws and so forth
as an employer or a business operator.
2 If casualties and/or other accidents occur among employees
engaged in The Business, B shall process all the matters on its
own responsibility and at its cost not to cause any trouble to A
2
[Commissions and so forth]
Article 8 The value of accomplishment of The Business by B (hereinafter called
"Commissions") shall be determined as provided in the separate sheet
except for the case in which any special agreement is provided in
the current contract or other agreement in writing between A and B.
2 B shall claim A for the Commissions of the month mentioned in
the previous section in principle by the 5th of the following
month by the methods that the both parties have confirmed and A
shall pay B the said claim adding to it the equivalent amount to
the consumption and local taxes by transferring the payment to
the bank account that B designates by the 20th of the month in
which A received it. If, however, the said day falls onto a bank
holiday, the payment shall be due on the following business day
of the bank. Furthermore, B, in the case there are both fixed
Commissions that have been closed at the end of the month and
variable Commissions determined quantitatively, shall claim A
for them separately and A shall, if both parties have confirmed
the particular necessity, pay the said Commissions separately.
3 Commissions can be changed if the contents or the terms and
conditions of The Business have been modified, or if other
events that may majorly affect the calculation ground of the
Commissions have occurred, and thus the necessity to revise the
Commissions has been recognized through conferences between A
and B.
[Offset]
Article 9 In the case A bears monetary liabilities to B under the current
contract, A shall be able to offset the liabilities with B's
monetary liabilities (inclusive of the indefinite liabilities) to A
under the current contract or other contracts made between the two
parties, at any time, irrespective of the due date, without any
advance notice or demand.
[Business report]
Article 10 B shall have to report to A regarding the performance status of The
Business regularly or on A's request in the formats that A shall
separately designate (including the monthly telemarketing
performance report).
[Education and training to the Employees engaged in The Business]
Article 11 B shall properly provide education and training to the Employees
engaged in The Business during the contract period to let them
acquire the knowledge and others that are necessary to accomplish
it.
[Prohibition of the transfer of the rights and duties and sub-consignment]
Article 12 B shall not transfer all or part of its rights and duties under the
current contract to the third party nor pledge them as collateral
for itself or the third party.
2 B shall not sub-consign The Business to the third party. This
shall not apply, however, if A accepts it through advance
conferences between A and B.
3
3 If B sub-consigned The Business after obtaining the consent
provided in the previous section, it should have its
sub-consignee comply with its duties stipulated in the current
contract, and should be entirely responsible for the
sub-consignee's actions.
[Observance obligation]
Article 13 Concerning The Business that B has been consigned, it shall comply
with the Telecommunication Business Law and other related laws,
and/or the contract stipulations and so forth regarding These
Services, and the items to observe in The Business in the separate
sheet [2] and sincerely accomplish it.
2 All the transaction conditions that B shall offer its customers
in its accomplishing The Business, shall be in accordance with
the contract stipulations and so forth concerning These
Services.
[Confidentiality obligation]
Article 14 B must not disclose or leak A's confidential information to the
third party that it could learn in connection with concluding or
executing the current contract, and it shall not use it for any
other purpose but executing the current contract.
2 B shall hold its board of directors and the Employees engaged in
The Business (inclusive of those who retired from either of
them, which shall apply hereinafter) under obligation of the
confidentiality stipulated in the previous section, and if any
of its directors on the board or the Employee engaged in The
Business should violate it, it shall be considered to have
violated it.
3 Concerning the information on A's customers, "The memo on the
protection of customers' information and the confidentiality"
concluded between A and B on January 28th (twenty-eighth), 2009
shall be applied with priority.
[Intellectual property right]
Article 15 The copyright over the manuals and other materials which was made in
the process of accomplishing The Business shall solely belong to A.
If, however, dissent occurred regarding how to deal with the said
copyright, A and B shall sincerely confer on it separately.
[Modification of the Contract]
Article 16 If A intends to change an article of the current contract, it shall
notify B of it in writing in advance.
2 If the writing conveying B's objection to the said modification
has not reached A from B within 10 (ten) days after the day on
which the notification stipulated in the previous section has
reached B, or in the event that B has dealt with The Business
involved in the said modification according to the modified
contents after the initial date to implement it that B shall
designate in its notice of the modification, B shall be
considered to have accepted it, and the articles of the current
contract concerned shall be thereby considered to have been
modified.
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3 If the writing conveying B's objection to the said modification
has reached A from B within the period stipulated in the
previous section, A and B shall sincerely confer on the pros and
cons of the said modification to process and/or resolve it
smoothly.
[Termination]
Article 17 A or B, even during the effective period of the current contract,
shall be able to terminate it by notifying the other party of it in
writing 30 days before the termination date.
2 In the event that the current contract has been terminated
pursuant to the previous section, the Commissions and so forth
shall be settled by the methods that A shall designate.
[Cancellation]
Article 18 If A or B should fall into any of the following items, the other
party shall be able to cancel the current contract immediately
without being required of any procedure, i.e. a notice, demand and
so forth.
(1) Breach of even a single article of the current contract, and
the breach has not been corrected despite the other party's
demand for correction in an appropriate period of time;
(2) Dishonesty in connection with the accomplishment of The
Business;
(3) Frequent protests or complaints from customers regarding the
accomplishment of The Business due to the matters that B is
to be blamed for, which have not been stopped despite the
demands to correct them in an appropriate period of time, or
if damage has been inflicted to customers due to the matters
that B is to be blamed for;
(4) Court order or notice of seizure, or provisional seizure, or
provisional disposition has been sent, or in the case of the
receipt of petition for auction, or disposition for tax
delinquency;
(5) Disposition of suspension of payment, or the commencement of
bankruptcy procedure, or civil revitalization, or corporate
reorganization, or special liquidation;
(6) An administrative sanction by the competent authorities, or
discontinuance of business; (7) Protested bills that were
drawn or accepted by either A or B, or dishonored checks
that were drawn by either of them;
(8) Liquidation
(9) Abasement of the other party's honor and/or credit, or
significant damage inflicted to the other party, or such a
risk;
(10) and besides, critical changes in B's assets, credit, or
solvency and so forth
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2 If any of the items in the previous section applied, A, or B
should be liable to compensate the damage the other party has
suffered irrespective of whether the cancellation of the current
contract occurred or not, and the amount of compensation should
be determined through conference between A and B.
3 If the current contract was cancelled pursuant to Section 1of
this Article, B should abandon its claims for all the payment
except for its claim for the due Commissions incurred prior to
the cancellation date pursuant to the current contract, without
being required of its manifestation of intention, and should not
claim A for anything.
[Effective period]
Article 19 The effective period of the current contract shall be from January
26th (twenty-six), 2009 to March 31st (thirty-first), 2009.
[Procedure after the expiry]
Article 20 When the current contract has expired, B shall have to immediately
return A all the goods, documents and so forth that A lent pursuant
to the current contract.
2 Even after the expiry of the current contract, Article 5 Section
4, Articles 6, 7, 9, 12, 14, and 15, Article 18 Section 3,
Articles 20, and Article 21, shall remain effective.
[Competent Court]
Article 21 Regarding disputes concerning the current contract, the Court with
jurisdiction over the location of A's head office shall be the
competent court dedicated to the first instance.
[Agenda of conferences]
Article 22 In the case of items that are not stipulated in the current contract
or dissent in interpretations of an Article or a Section of the
current contract, A and B shall sincerely confer each time and
promptly resolve them.
IN WITNESS OF the current contract that has come to effect hereby, two copies of
it has been executed, onto which A and B each has put its own signature and seal
to be stored to each.
January 28th (twenty-eighth), 2009
A:
/s/ Xxxxxxxx Xxxxxxxx [Seal]
General Manager, FMC Department 4,
FMC Division, KDDI Corpration,
00-0, Xxxxxxxxxxx 0-xxxxx, Xxxxxx-xx, Xxxxx
B:
/s/ Xxxxxx Xxxx [Seal]
CEO, Global Hotline, Inc.
00-00, Xxxxx-Xxxxxxxx 0-xxxxx, Xxxxxxxx-xx, Xxxxx
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Separate Sheet
[1] These Services
The Business shall involve the following communication services and so
forth:
(1) Myline and MylinePLUS services
(2) Services for catching calls from the fixed phones on the mobile phone
(3) Free call services (4) Other telecommunication services that A shall
separately designate
[2] Items to observe in The Business
B, in acquiring the application forms (inclusive of the CD-ROM to be used
for the online applications, which shall be applied hereinafter), shall in
principle observe the items stipulated as follows:
(1) Confirm that the application is intended by the customer.
(2) Confirm that the application form has been signed off, sealed by the
customer who is applying and also that his/her address, name, the
contract phone number, and the items that A needs are properly entered.
(3) If B acquired an application from the customer as a result of its calls,
ensure that the address, name, the contract phone number, the
application type or the type of charge to apply the customer, and the
items that A needs, have been properly entered in the documents that A
designates.
(4) Confirm that the customer has adequate understanding regarding the
methods and conditions of its use of the services.
[3] Places to accomplish the business
B shall mainly accomplish The Business on the following locations:
8F Hakuho Xxxx.
00-00, Xxxxxxxx 0-xxxxx, Xxxxxxxx-xx, Xxxxx
00X Nishi-Shinjuku Showa Xxxx.
00-00, Nishi-Shinjuku 1-chome, Shinjuku-ku, Tokyo
B, in accomplishing part of The Business (operations to open lines
concerning the applications, which will apply hereinafter), shall practice
it in the following location (hereinafter called "A's premises").
Furthermore, in A's premises stipulations in [4] Leases of apparatus and
others and [5] Onerous contract shall be complied with.
Bunkyo Green Call Center Office
2-28-8 Honkomagome, Bunkyo-ku, Tokyo
[4] Leases of apparatus and others
A may rent B apparatus and/or equipment and others that A designates
(hereinafter "Apparatus and others") with or without charges as A recognizes
it to be necessary to accomplish The Business on conditions provided in this
sheet or others in writing. In this case, B shall store and use them with
the due care of a good manager and shall not use them for any other purposes
than accomplishing The Business.
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[5] Onerous contract
1. A shall rent the facilities and others below for the following charges.
B shall pay the rent as per A's claim.
Facility and others Rent
------------------------------------ ------------------------------
(1) Operation space (limited to the
space separately agreed on bet.
A and B).
(2) Furniture in the operation space
in (1).
(3) Utility, e.g. electricity, gas, Y* per month (excluding
and water in the operation space c-taxes and local taxes)
in (1).
(4) Telephone and other telecom-
munication lines and equipment
in the operation space in (1).
------------------------------------ ------------------------------
2. B shall transfer the rent for the said facilities and others to A's bank
account based on A's claim in accordance with the provision for B's
payment. Furthermore, B may set off the payment with the Commissions
that B claims A.
[6] Days and time slots and so forth to accomplish the business
1. The days and time slots for B to accomplish The Business shall be from
9:00 to 18:00, from Monday through Friday (hereinafter called "Business
days").
2. The total hours of operation in each month of the year to accomplish The
Business (hereinafter called "Standard hours") shall be as shown in the
following table:
Month of the year Standard hours
----------------- --------------
January * hrs.
February * hrs.
March * hrs.
----------------- --------------
3. If B has to operate differently as stipulated in the previous section
for responding to its customers and other reasons, it should so
implement after obtaining A's approval in advance.
[7] Goals of The Business
The goals for obtaining applications provided in Article 2 Section 3 in the
current contract shall be as follows:
1. Concerning Myline and Myline PLUS:
From January, 2009 to March, 2009: * lines
The goals for obtaining applications shall count only Myline and Myline PLUS
that were opened.
2. Others: None
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[8] Standard for the payment of commission fees
1. Commissions
The monthly fixed amount is determined as part of Commissions (excluding
consumption taxes and local taxes) concerning The Business as follows:
Monthly amount
--------------------------- ----------------------------------------------
Basic Commissions (including onerous contract)
January, 2009 Y* (excluding taxes)
(Y* including taxes)
--------------------------- ----------------------------------------------
February, 2009 Y* (excluding taxes)
(Y* including taxes)
--------------------------- ----------------------------------------------
March, 2009 Y* (excluding taxes)
(Y* including taxes)
--------------------------- ----------------------------------------------
2. Irrespective of the provision in the previous section, if the total
hours of operation (with less than 15 minutes omitted: Hereinafter
called "Actual hours of operation") was under the Standard hours, the
amount of the Commissions (excluding consumption taxes and local taxes)
for the month shall be calculated using the following formula:
(Amount of Commissions) = The amount of Commissions of the month x
(Actual hrs. of operation) / (Standard hrs.)
3. Measurement of Actual hours of operation shall follow the methods that A
and B shall agree on separately from the current contract. Furthermore,
regarding the number of hours that A has admitted to be appropriate to
accomplish The Business, it can be included in the Actual hours of
operation.
4. B, on each business day, shall report A the total Actual hours of
operation in the booths spent for The Business on the previous business
day. In the case that B implemented The Business on other days than
business days based on Section 3 under [4], it should make the report on
the following business day.
5. A shall be able to audit B's books/ledgers, records and so forth as many
times as it may wish to examine whether or not the contents reported
from B pursuant to the previous Section is correct after notifying B of
its auditing in advance.
6. Even if the total Actual hours of operation in each month was longer
than the Standard hours for each month of the year, the amount of
Commissions stipulated in the Section 1 shall not be changed.
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