EXHIBIT 10.4
BUSINESS CONSIGNMENT AGREEMENT
Translated From Japanese
KDDI, Inc (hereinafter A) and Global Hot line, Inc (hereinafter B) shall enter
into service agreement on gaining clients for telecommunication services and
others (hereinafter the Services) provided the Appendix.
(The Operations)
1. A provides B operations below (hereinafter the Operations) to promote the
Services. The details will be provided in the Appendix.
(1) Gaining and dealing with clients for the Services via telemarketing
(2) Any operations pertaining to above.
(Performance)
2. Both A and B shall make the procedure manual (including script, guide, and
manual) regarding the courses of the Operations through separate
discussion.
2) B shall carry out the Operations with due management care following
the manual above.
3) Both A and B shall discuss and determine the monthly goals for the
Operations and can change them considering the track record and
others.
4) A may request B for improving the Operations methods if A recognizes
them as inappropriate or judges it is difficult for B to achieve the
goals above, and B shall improve immediately responding to it.
5) B shall perform the Operations in the areas A appoints. A may appoint
the areas anytime and B shall follow it.
(Responding to Customers)
3. B, if it has received direct or indirect inquiries from customers, shall
report them to A as soon as possible and respond to the customers and
process them in its responsibility.
(Place, Days and Time of Operations)
4. The places, days and time of the Operations are provided in the Appendix.
(Operators)
5. B shall determine its employees to be engaged in the Operations
(hereinafter the Operators) and if A requests, B shall notify A who they
are in writing in the format that A specifies.
2. B shall select a manager from among the Operators and report A of him
or her in a written form that A specifies and this applies if a
manager is changed. However, a manager cannot be a temporary worker,
e.g. a part timer or short-hours worker.
[*] = 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 A
"*".
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3. A shall determine the Operations methods and others necessary items
for B to perform the Operations through discussions with the manager
provided in clause 2.
4. B shall ensure that the Operators should fulfill the duties provided
in the Agreement and bear the whole responsibility for performing the
Operations. If any of the Operators has caused damages to A, even in
the case B has not neglected due care for selection and/or supervision
of the Operator, it shall jointly take responsibility with the
Operator.
(Responsibility for the Operations)
6. B is wholly responsible for the Operations. In case B should receive a
protest or a complaint from a customer, or if it should cause damage to A
or its employee, customer, or other third party, or should it cause a
dispute, B shall immediately report it to A and concurrently handle all in
its responsibility and at its cost and cause no troubles to A.
2. If a customer or another third party should make any appeal, or
protest or claim against B due to B's performing the Operations, 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 discussion between
A and B.
(Responsibility under Labor Laws)
7. B shall observe the acts and rules in pursuant to the Labor Standard Acts,
the Workers' Accident Compensation Insurance Law, the Health Insurance Law,
the Employment Insurance Law and others, and bear all the responsibilities
provided in these laws and so forth as an employer or a business
proprietor..
2. If an injury or any accident occurs to an Operator, B shall handle all
in its responsibility and at its cost not to cause any troubles to A.
(Consignment fee)
8. A shall pay B commission fee based on Consignment payment standard provided
in Appendix.
2. Either A or B may change the amount of the Consignment fee through
discussion if either of them recognizes it as unfair.
3. A shall tally the Consignment fee incurred each month of the year and
pay the total for the month adding the amount equivalent to the
consumption and local consumptions taxes (hereinafter the Consignment
fee and others) into the bank account that B designates EOM of the
following month of the closing date. The due, however, shall be the
following business day if it falls onto a bank holiday.
(Offset)
9. In the case A bears monetary liabilities to A under this contract, A shall
be able to offset anytime the liabilities with B's debts (inclusive of the
indefinite liabilities) to A under this Agreement or other contracts made
between the two parties, irrespective of the due date, without any advance
notice or demand.
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(Report)
10. B shall report to A regarding the performance status of the Operations with
the form separately provided (including monthly Telemarketing report)
regularly or as per A's request.
(Education and training)
11. B shall provide the Operators with appropriate education and training to
let them acquire the knowledge necessary to perform the Operations.
(Non-negotiable)
12. B shall not transfer all or part of its rights and duties based on the
Agreement to any third party nor offer them as collateral for itself or the
third party.
2. B shall not sub-consign the Operations to any third party. However, if
A accepts it through advance discussion between A and B, this will not
apply.
3. In case B sub-consign the Operations after obtaining the consent
provided above, it should ensure that the sub-consignee observe its
rights and duties provided in the Agreement, and shall be entirely
responsible for the sub-consignee's acts.
(Compliance)
13. Concerning the consigned Operations, B shall perform them with good faith
complying with the Telecommunication Business Law and other related laws,
and/or the Articles of the Services, and the items to observe in the
Operations in the Appendix [2].
2. All conditions presented to customers by B in performing the
Operations shall be based on the terms and conditions in the Articles
of the Services.
(Confidentiality)
14. B must not disclose or leak to any third party A's confidential information
that it could learn in connection with the conclusion, and use it for any
other purpose but performance of the Agreement.
2. B shall hold its board of directors and employees (including those who
retired from the positions, which shall apply hereinafter) obliged for
the confidentiality provided above, and if any of its directors on the
board or employees should violate it, it shall be considered to have
violated it.
3. Regarding the information on A's customers, "Memo on the protection of
customer's information and confidentiality" signed between A and B on
mm/dd/2008 shall be applied with priority.
(Intellectual property rights)
15. A solely owns the copyright of procedure manual and other documents made
during the process pursuing the Operations. However, in the event of a
discrepancy over how to deal with the intellectual property rights, both A
and B will discuss in good faith.
(Changing the Agreement)
16. A shall give B a written notice if conditions of the Agreement are to be
changed.
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2. If the writing conveying B's objection to the said change has not
reached A from B within 10 (10) days from the day on which the notice
above reached B, or if B has dealt with the Operations in accordance
with the modified terms and conditions on or after the date to
implement the change as the notice provides, B shall be considered to
have agreed on the said change and the terms and conditions of the
Agreement shall be considered to have been changed.
3. If A receives objections from B within 10 days, both A and B try to
discuss whether or not to make the said change and solve the problems
together in good faith amicably.
(Termination)
17. Either A or B may cancel the Agreement with 30 days advance notice in
writing even during its effective term.
2. When the agreement was cancelled in accordance with the provision
above, B shall reimburse the Consignment fee and others in the way
provided by A.
(Cancellation)
18. Either A or B may terminate the Agreement without any notice, demand, or
procedure, if one of the incidents below occurs.
(1) Either party breaches the agreement, or if either party fails to
correct any material breach during significant term.
(2) Either party commits wrongdoing.
(3) As customers frequently protest or complain, and never been decreased,
when B has caused damages to customers due to the matters B is
responsible for.
(4) Either party is seized assets and put up for auction or tax closure.
(5) Either party files a petition in bankruptcy, a court-mandated bailout,
or winding up petition.
(6) Receives disciplinary action or ceases an operation.
(7) Issues a bad check or draft
(8) Either party dissolves a company.
(9) Each party inflicts damage the other party's honor or reputation or
causes or likely to cause significant damages
(10) A material change has occurred to assets, credit, and/or solvency.
2. If any of the items above applies, A or B should be liable to
compensate the damage the other party suffered irrespective of whether
cancellation of the Agreement occurs or not, and the amount of the
compensation shall be determined through discussion between A and B.
3. If the Agreement has been cancelled in pursuant to clause 1, B should
abandon its claims for all the payments except for its claim for the
due Consignment fees incurred prior to the cancellation date provided
in the Agreement, and should not claim A for anything without being
required of manifesting its intention.
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(Effective period)
19. 2008/October /1 through 2008/December/31.
(After termination)
20. After the Agreement is terminated, B shall immediately return any goods,
documents, and others that A rented under the Agreement.
2. The provisions of Article 5.4, Article 6, Article 7, Article 9,
Article 12, Article 14, Article 15, Article 18.3, Article 21, and this
Article shall survive termination.
(Jurisdiction)
21. Competent court with jurisdiction over the location of A's head office,
shall be the court of the first instance and have exclusive jurisdiction to
settle any disputes which may arise regarding this Agreement.
(Consultation)
22. Either A or B may discuss and solve the problems together in good faith,
whenever any question occurs about conditions under the agreement or
matters that are not provided in the Agreement as soon as possible.
IN WITNESS OF this Agreement that has come to effect hereby, two (2) copies of
it has been executed, onto which A and B each shall affix a signature and a seal
to be stored to each.
2008/ /
A: B:
/s/ Xxxxxxxx Xxxxxxxx /s/ Xxxxxx Xxxx
General Manager, FMC Department 4, CEO
KDDI Corporation Global Hotline, Inc.
2-chome, 28-8, Honkomagome 1-chome, 00-00 Xxxxx-Xxxxxxxx,
Xxxxxx-xx, Xxxxx Xxxxxxxx-xx, Xxxxx
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APPENDIX:
(1) services
1. My line and My line plus
2. Services from fixed line phone to mobile phone
3. Free call service
4. Telecommunication service ordered by A.
(2) Operation faith
B, in acquiring the application forms (including the CD-ROM to be used for the
online application, which shall be applied hereinafter), shall in principle
observe the following:
1. Clients apply for the application of their own free will.
2. Clients sign and seal by themselves, and their address, name and phone
number have to be written properly.
3. If B gets applicants by phone, clients address, name and phone number
or applied price list have to be written properly by B.
4. Clients understand how to use service and conditions properly.
(3) Place
Main office to perform the Operations
B shall perform the Operations on the following location:
0X, Xxxxxxx Xxxx.
00-00 Xxxxxxxx 0-xxxxx, Xxxxxxxx-xx, Xxxxx
(4) Days and Time
1. Monday through Friday (hereinafter Business Day) 9:00 - 18:00
2. Telemarketing open hour (hereinafter Standard work hours)
Month Total Hours
----- -----------
October * hours
November * hours
December * hours
3. B may perform the Operations differently from the provisions in the
two clauses above with A's permission if B needs to do so for
customers and other reasons.
(5) Consignment payment standard
1. A shall pay the Consignment * yen monthly (excluding c-taxes) for
October through December.
2. It will be calculated if the work hours (hereinafter "Actual work
hours", round down below 15 minutes) is less than Standard work hours.
(round down below 1 yen)
Retainer = * X (Actual work hours) / (Standard work hours)
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3. Actual work hours will be calculated in the way separately agreed by
both A and B. The number of hours that A considers to be appropriate
to include in the Actual work hours in order to perform the Operations
can be added.
4. B shall report Actual work hours on the previous day and other matters
A specifies to A on each business day. Also when B performs the
Operations on the day which is not Business Day (Article 4, 3), report
shall be made on the following Business Day.
5. B may check accounts book, record, and others anytime with advance
notice, if A wants to see whether or not B's report provided above is
correct.
6. The amount of the Consignment retainer will not be changed even when
Actual work hours in each calendar month is more than Standard work
hours for the month.
The end.
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