Exhibit 10.60
Translated from Japanese
CONTRACT ON ENTRUSTING SALES CONCERNING AU CORPORATE CELLPHONE SERVICES
KDDI, Inc (hereinafter A) and Global Hot line, Inc (hereinafter B) shall enter
into agreement (hereinafter the Agreement) on promoting subscriptions of
telecommunication services and selling related products that are entrusted to B
by A to corporate clients (hereinafter the Operations) as follows:
(The Operations)
1. A entrusts B with the Operations provided in the separate sheet.
2. A and B shall set the goals regarding the Operations. The goals shall be
provided on the separate sheet except for the case in which special
arrangement has been made to the Agreement and other agreement in writing
between A and B.
(Definitions of terms)
1. This Agreement employs the following terms by each definition set forth.
Terms Meaning
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(1) Corporate au communication Telecommunication services based on A's
services au communication services contract
offered by A (limited to what A
separately specifies).
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(2) Related Corporate au Telecommunication services related to
communication services (1) (including corporate fixed lines
communication services).
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(3) Solution services Other non-telecommunication services
provided by A related to (1) and/or (2)
that A separately specifies.
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(4) Corporate au communication (1), (2) and (3)
services and others
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(5) Related products End apparatus, accessories, and
peripherals related to (4).
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(6) au contract au contract provided in A's au
communication services contract that
concerns with (1)
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(Personnel management)
3. B shall provide organization, placement, administration system, education
and training to perform the Operations. A shall not directly provide these
to B's employees.
[*] = 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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(Performance)
4. B shall carry out the Operations with due management care following the
Agreement and A's instructions.
2. A may request B to improve its way of performing the Operations if A
assumes there are any problems with it. B shall respond to it as soon as
possible.
3. If B receives protests or complaints from any third party or inflicts
damage to any third party or causes a dispute between the third party in
performing the Operations, B shall report it to A immediately and take
responsibility to process and solve it at its cost.
4. B shall not damage or take actions to possibly damage A's honor, credit
and the like.
5. B shall comply with any related laws and instructions or guidance by
competent regulators.
(Performers of the Operations)
5. B shall determine the employees to perform the Operations (hereinafter the
Operators). Also, whenever A requests, B shall notify A, considering the
intent of the request, the names of the Operators and others in writing in
the format that A designates as soon as possible.
2. B shall select a manager from among the Operators in accordance with the
arrangement separately provided through discussion with A and then
notify of the manager to A in writing in the format that A designates.
This applies whenever a manager is changed, however, provided that any
temporary employee, e.g. a part timer cannot be appointed as manager.
3. B shall manage the Operators so that they observe the duties provided in
the Agreement and take the whole responsibility for the Operators
concerning performing the Operations.
(Education and training)
6. B shall, in its responsibility and at its cost, provide the Operators with
sufficient education and training to let them perform the Operations
appropriately and smoothly.
2. A will cooperate B upon B's request in the education and training based
on the provision above if A recognizes as necessary.
3. The two provisions above shall be applied to the education and training
to any sub-consignee provided in Article 11.2 as well.
(Report)
7. B shall report the Operations progress in writing in the form A separately
designates by the 5th business day in the following month. Also A may
request B to report on the progress anytime. In the event of the said
request, B shall immediately report it to A in writing in the format that A
separately designates.
2. A may enter B's offices or other places related to the Operations with
B's advance admission to confirm and/or investigate the status of the
Operations and request relevant documents and others to review, which B
shall cooperate with.
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(Responsibility based on Labor Laws)
8. B shall comply with the Labor Laws, related acts and regulations concerning
the Operators and take the whole responsibility as employer and business
proprietor as provided in these.
2. If an injury or any other accident occurs to any of the Operators, B
shall process and solve it in its responsibility and at its cost so that
no troubles should be caused to A.
(Leases of apparatus and others)
9. 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 perform the Operations, In this case, B shall store
and use them with due management care and shall not use them for any other
purposes than performing the Operations.
2. A may specify business cards and others (hereinafter the Business Cards
and others) that B shall use in performing the Operations. In this case
B shall, in using the Business cards and others, manage them with due
management care and use them only for the purpose of performing the
Operations, and concurrently, strictly refrain from socially
unacceptably inappropriate remarks or behaviors or appearances that
possibly damage A's credit or honor, or deteriorate A's dignity; and if
A presents regulations, B shall observe the said regulations. Also, B
shall notify A in writing the names, addresses, telephone numbers and
others as A separately designates of the Operators to use them in
advance and obtain A's approval. This applies to the cases of making
changes to them. Also A may tell B to stop any Operator's using them
anytime and B shall do so.
(Advertising and publicity)
10. If B performs advertising or publicity (hereinafter Advertising and
publicity) regarding Corporate au communication services and others or
related products, B shall notify A of it in writing fairly before if and
follow B's instructions concerning marks, media and others to be used in
Advertising and publicity.
(Prohibition of sub-consignment)
11. B shall never sub-consign the Operations to any third party without
obtaining A's permission in writing in advance.
2. In case B should consign part of the Operations to a third party
(hereinafter Sub-consignee) after obtaining the said permission in the
provision above, B shall ensure that the sub-consignee should fulfill
B's duties provided in the Agreement and take the whole responsibility
for the acts of the Sub-consignee.
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(Consignment fees and others)
12. The value of B's performing the Operations (hereinafter Consignment) shall
be provided in the separate sheet unless special arrangement has been made
to the Agreement and other agreement in writing between A and B.
2. B shall in principle submit a xxxx for the Consignment for the month
provided above in the manner agreed on between A and B by the 5th
business day of the following month and A shall pay for it by the 20th
of the month in which it has received the said xxxx (on the previous
business day if 20th is a bank holiday). If there are fixed Consignment
settled EOM and incremental Consignment by quantity, B shall submit the
separate bills to A, and A shall pay for them separately if both parties
have recognized the special necessity to do so.
3. Consignment can be changed after discussion between A and B if the
necessary to revise the Consignment has been recognized as any change to
the contents or conditions of the Operations or any other event to
greatly impact the calculation ground of the Consignment has occurred.
(Confidentiality)
13. The existence and contents of the Agreement, any information on the
Agreement that has been received in making it and development of events to
that point shall be regarded as confidential information provided in the
Non-Disclosure Agreement (hereinafter NDA) signed between A and B on January
15, 2009.
2. Both parties shall deal with any information that could be learned on
the other party in performing the Operations in accordance with the NDA.
3. B shall hold its board of directors and employees (inclusive of those
who retired from either position, which shall be referred hereinafter
the Employees and others) under obligation of the said confidentiality
in the previous above, and if any of the Employees and others should
violate it, it shall be regarded as B's breach.
4. Regarding the information on A's customers, B shall comply with
"Agreement on the protection of customers' information and
confidentiality" signed separately between A and B.
(Agent)
14. Since B shall not be given the position as A's agent, whenever B deals with
any third party in connection with performing the Operations, B shall be
totally responsible for the deals as principal B.
(Notices on changing address and others)
15. If B changes its office address, company name, executive director, or
contact information, B shall notify it to A in writing in advance.
2. It will be considered B has received any documents A has sent or
forwarded to the previous address, company name, executive director, or
the contact information, if B neglects the said notice provided above.
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(Revision to Agreement)
16. A shall give B a written notice if it becomes necessary to modify any of the
items in the Agreement, and if no written objection by B to the said notice
reaches within 10 days from the day on which it reached to B, the Agreement
shall be revised according to the contents of the said notice. In this case,
the revised conditions shall come to effect on the day that B designates in
the said notice.
2. Regarding the revision of the Agreement based on the notice provided
above, if B's writing conveying its objection has reached within the
period of time provided above, both A and B shall discuss in good faith
whether or not to make the said change, and process and solve it
amicably.
(Effective period)
17. 2009/01/01 through 2009/03/31
(Termination)
18. Despite the provision above either A or B may terminate the Agreement with
one (1) month notice in writing even during its effective term.
(Cancellation)
Either A or B may cancel the Agreement without any notice or procedure, if
either party falls into any of the following:
(1) Either party breaches or possibly breaches the Agreement and despite A's
request for the correction during due time yet the said correction has
not been made;
(2) 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;
(3) Disposition for tax delinquency;
(4) Disposition of suspension of payment, or the commencement of bankruptcy
procedure, or civil revitalization, or corporate reorganization, or
special liquidation;
(5) Dishonored bills either issued or accepted, or dishonored checks;
(6) Liquidation not by M&A, or discontinued business;
(7) Dishonesty in performing the Agreement;
(8) Abasement of A's honor or credit, or material damage to A has been
inflicted or possibly caused;
(9) A material change has occurred to B's assets, credit, and/or solvency
and others;
(10) Other than each of the previous cases, in the event of significant
matters to make it difficult to continue the Agreement that B is
responsible for;
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(Procedure after termination)
20. After the Agreement is terminated irrespective of the reasons, B shall
immediately, according to A's instructions, return A or dispose of any
apparatus and others and confidential information (including its copies) and
dispose of all the printed matters concerning the Business Cards and others.
(Damages)
21. If B inflicts A or a third party damages that B is responsible for in
performing the Agreement, B is liable for damages.
2. When A pays the third party damages which B should be liable for in
accordance with the provision above, B shall pay back the amount to A
later.
(Set off)
22. Based on the Agreement when either A or B has monetary obligation to the
other party, irrespective of its payment due, either party has the right to
set it off against its mature monetary obligation anytime without notice in
advance.
(Prohibition of assigning rights and duties)
23. B shall not assign or offer as collateral for itself or a third party all or
part of rights and duties based on the Agreement to any third party without
obtaining A's permission in writing in advance.
(Survive termination)
24. Article 4.3-4, Article 5. 3, Article 8, Article 11.2, Article 13, Article
19.2, Articles 21 through 25 shall survive termination.
(Jurisdiction)
25. Tokyo districts courts are to have exclusive jurisdiction to settle any
disputes which may arise out of this Agreement.
(Consultation)
26. Either A or B may discuss and solve the problems together in good faith as
soon as possible, whenever any question occurs about terms and conditions of
the Agreement or any matter that is not provided in it.
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.
2009/01/15
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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Separate Sheet
1. Details of the Operations:
(1) Make an appointment with corporate customers by call.
(2) Visit corporate clients for sales
(3) Explain and propose corporate au telecommunication services for
customers
(4) Deal with closing contracts on corporate au communication services and
others
(5) Respond to corporate customer inquiries.
(6) Explain and propose corporate Metal Plus Call Services (for offices) and
Free Call services.
(7) Deal with closing contracts on corporate Metal Plus Services (for
offices) and Free Call services.
(8) Respond to corporate customers' inquiries on corporate Metal Plus
Services (for offices) and Free Call services.
(9) Other operations pertaining to any item above that A separately
designates.
2. Onerous contract (Article 9. 1)
(1) A shall rent facilities and others below for the following charges. B
shall pay rent as per A's claim.
Facility Rent
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(1) Operation space (limited to space Y* monthly (including c-tax)
separately agreed on bet. A and B). (Y* monthly excluding c-tax)
(2) Furniture in the operation space (1).
(3) Utility, e.g. electricity, gas, and
water in the operation space (1).
(4) Telephone/ other telecommunication
lines and equipment in the operation
space (1).
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(2) B shall transfer the rent into A' bank account on A's claim in
accordance with B's payment rules. Also B may set off the payment with
the Consignment that B claims A.
3. Goals of the Operations (Article 1.2)
(1) au Related:
2009/January through 2009/March: * contracts
(2) Others:
None
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4. Days and time for Operations:
(1) B operates 9:00-18:00 from Monday through Friday (hereinafter Business
days).
(2) B shall operate differently from the provision above in order to respond
to customers and for other reasons after obtaining A's approval in
advance.
5. Consignment concerning the Operations:
Monthly fixed Consignment (excluding c-taxes)
(1) Basic Consignment:
2009/January - 2009/March Monthly amounts
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Add-on Basic Consignment
Consignment Fixed Consignment (incl. onerous contract)
----------------------------------------------------------------------------
2009/Jan. Y* (excl. c-tax) Y* (excl. c-tax) Y* (excl. c-tax)
(* incl. c-tax) (* incl. c-tax) (* incl. c-tax)
----------------------------------------------------------------------------
2009/Feb. Y* (excl. c-tax) Y* (excl. c-tax) Y* (excl. c-tax)
(* incl. c-tax) (* incl. c-tax) (* incl. c-tax)
----------------------------------------------------------------------------
2009/Mar. Y* (excl. c-tax) Y* (excl. c-tax) Y* (excl. c-tax)
(* incl. c-tax) (* incl. c-tax) (* incl. c-tax)
(2) Add-on Consignment above the goals:
Add-on Consignment above the goals shall be paid under the conditions in [2]
in addition to the basic Consignment if the number of au contracts completed
by B during the term of the Agreement (The contracts that led to opening
subscriber's line with B's referral to A excluding the au contracts provided
in [1] that shall not be paid for (hereinafter Contracts for payment)) has
excelled the goals of Operations provided above.
[1] au contracts with no payment
i. Lines cancelled, or paused or suspended within three (3) months
from the day on which the subscriber's line was opened.
ii. Contract made concurrently with termination of another au
contract
iii. Contract with the application form lacking the code that A
designates
[2] Conditions for add-on Consignment above the goals:
i. If the number of contracts closed during 2009/Jan. - 2009/Mar.
reached 3,001 above the goal up to *, add-on Consignment above
the goals shall be paid.
The Number of Contracts Amount of Add-on Consignment above the goals
----------------------- --------------------------------------------
* Y* per au contract (Y* incl. c-taxes)
* Y* per au contract (Y* incl. c-taxes)
* Y* per au contract (Y* incl. c-taxes)
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ii. If the number of contracts closed during 2009/Jan.- 2009/Mar. is
* or over, Y* per au contract excl. c-tax(Y* incl. c-tax) shall
be paid for the part from * to * and plus Y* per au contract
excl. c-tax(Y*incl. c-tax) shall be paid for that part from *
and over.
(3) Reimbursement of Consignment for unachieved goals:
Reimbursement of Consignment for unachieved goals shall be paid back
separately from the basic Consignment under the conditions in [3] if the
number of au contracts completed by B from 2009/Jan-2009/Mar. is short of
the goals provided in Article 3 on this sheet.
[3] Conditions for Reimbursement of Consignment for unachieved goals:
i. Contracts made 2009/Jan. - 2009/Mar.
ii. The gap between the total of add-on Consignment that is provided
in (1) and the total amounts shown in the table below
([Reimbursement of Consignment for unachieved goal] x the number
of contracts) shall be reimbursed.
The Number of Contracts Reimbursed Consignment for unachieved goals
----------------------- -------------------------------------------------
* Y* per au contract excl. c-tax (Y* incl. c-taxes)
* Y* per au contract excl. c-tax(Y* incl. c-taxes)
* Y* per au contract excl. c-tax (Y* incl. c-taxes)
* Y* per au contract excl. c-tax(Y* incl. c-taxes)
(4) Closing date
Regarding (2) Add-on Consignment above the goals and (3) Reimbursement of
unachieved goals from 2009/January through 2009/March shall be balanced on
May 31, 2009 (or the previous business day in case the said date falls on a
bank holiday).
6. Consignment concerning Metal Plus Service and Free Call DX/S Services
(1) Consignment concerning Metal Plus Service
A shall pay the amount provided in the table below for Metal Plus Service
that was entered and registered with A's computers and then newly subscribed
(hereinafter eligible Metal Plus Service) as consignment in addition to the
Basic Consignment. However, for those that falls into one of the following
is not eligible for payment of the said consignment. Also, if A later finds
that an application entered and registered with A's computer is revealed to
fall into the following, B shall immediately return the already received
consignment to A.
[1] Applications for changing services of already utilized services
[2] Addition or claims for the add-on functions
[3] Duplicated application for the identical services not that in not
based on the customer's will
[4] Eligible Metal Plus Services started after the entry and registry
with A's computer but terminated or suspended within three (3)
months after the services started.
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[6] Application by a party that was suspended to use Metal Plus Services
[7] The items that A requires are not appropriately entered or
registered.
[8] A cannot confirm the eligible applier's will of application.
Regarding method, procedure, and frequency with which A confirms the
customer's will of application, A shall determine them at its own
discretion and B shall not raise objection concerning these.
[9] Contract closed based on the customer's material misunderstanding of
the contents of services.
Services Type Payment Amount
----------------------------------------------------------------------------
Metal Plus Phone Services Y* per line excl. c-tax
Consign- for office (analogue) (Y* incl. c-tax)
ment -----------------------------------------------------------
regarding Metal Plus Phone Services Y* per line excl. c-tax
Metal for office (ISDN) (Y* incl. c-tax)
Plus -----------------------------------------------------------
Service Metal Plus ADSL one Y* per user ID excl. c-tax
for office (Y* incl. c-taxes)
----------------------------------------------------------------------------
(2) Consignment concerning Free Call DX/S Services
A shall pay the amount provided in the table below for Free Call DX/S
Services that was entered and registered with A's computers and then newly
subscribed as consignment in addition to the Basic Consignment.
Type Payment Amount
--------------------------------------- -------------------------
Incentives concerning new subscription Y* per member excl. c-tax
or additional application for Free Call (Y* incl. c-tax)
DX/S Service
(3) Regarding (1) Consignment concerning Metal Plus Services and (2)
Consignment concerning Free Call DX/S Service, payment shall be made in
accordance with each payment standard and the Consignment shall be
transferred to the bank account that B designates by the end of the month
after the following month of the concerned month.
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