Exhibit 10.11
Execution Version
Amended and Restated
Business Development and Resource Sharing Agreement
This Amended and Restated Business Development and Resource Sharing Agreement (the “Agreement”) dated September 25, 2017 is made by and among:
(1) | Shenzhen Tencent Computer Systems Co., Ltd., a corporation duly established and valid existing under the laws of the People’s Republic of China, whose legal address at5/F-10/F, FIYTA Building, High-tech South 1st Road,Hi-tech Park, Nanshan District, Shenzhen (“Tencent”); |
(2) | Sohu.com Limited, a corporation duly established and valid existing under the laws of Cayman Islands, whose legal address at PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands (“Sohu”); |
(3) | Sogou Inc.,a corporation duly established and valid existing under the laws of the Cayman Islands, whose legal address at Floor 4, Willow House, Cricket Square, P O Box 2804, Grand CaymanKY1-1112, Cayman Islands (“Sogou Inc.”); |
(4) | Beijing Sogou Technology Development Co., Ltd., a corporation duly established and valid existing under the laws of the People’s Republic of China, whose legal address at Room 01, 9/F Sohu.com Internet Plaza, No. 1 Park Zhongguancun East Road, Haidian District, Beijing (“Sogou China”); |
(5) | Beijing Sogou Network Technology Co., Ltd., a corporation duly established and valid existing under the laws of the People’s Republic of China, whose legal address at Suite 1916, 19/F, Building 4, No. 1 Park Wangzhuang Road, Haidian District, Beijing (“Sogou Network”); |
(6) | Beijing Sogou Information Service Co., Ltd., a corporation duly established and valid existing under the laws of the People’s Republic of China, whose legal address at Room 02, 9/F Sohu.com Internet Plaza, No. 1 Park Zhongguancun East Road, Haidian District, Beijing (“Sogou Information”); |
(7) | Shenzhen Shi Ji Guang Su Information Technology Co., Ltd., a corporation duly established and valid existing under the laws of the People’s Republic of China, whose legal address at 16/F,Tencent Building, Kejizhongyi Avenue, Yuehai Street, Nanshan District, Shenzhen, Guangdong Province, China (“Shi Ji Guang Su”) |
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The parties mentioned above shall hereinafter be referred to individually as a “Party”, and collectively as the “Parties”. In particular,Sogou Inc.,Sogou China,Sogou Network,Sogou Information andShi Ji Guang Su (after theStarting Date as defined below) are collectively referred to as “Sogou”.
To optimize and improve the online search business as well as related products and applications of the Parties, and to make full use of and develop related technology, platforms and user resources of the Parties, in line with the principles of resource sharing, reciprocity and mutual benefit, common development and serving users, the Parties, following friendly discussion, hereby agree to amend and restate the Business Development and Resource Sharing Agreement (the “Original Agreement”) signed by the Parties on September 16, 2013 as follows:
Article 1 Long-term business partnership
1.1 | The Parties agree that, from September 16, 2013 (“Starting Date”) to September 15, 2018,Tencent andSogou shall provide business support in the following areas: |
(1) | Tencent shall make reasonable efforts to provide search traffic toSogou according to the following programs (such programs may be revised from time to time by theParties in the form of written agreements): |
i. | Cooperation in respect of enhancing PC search traffic |
a) | Provided that it will not affect user experience and product demand, Tencent shall make reasonable commercial efforts to maintain search traffic provided to SOSO before theStarting Date. |
b) | Provided that it will not affect user experience and product demand, query recommended module will be placed on the appropriate sites of www.qq.com, and the corresponding search service provided bySogou will be used in priority. |
c) | Tencent plans to increase the market share of QQ Directory through guiding in locking default Directory Page of the browser and other means, and QQ directory’s internal search service provided bySogou shall be adopted in priority. |
d) | Based on the principle of maximizing efficiency,Tencent plans to significantly increase the market share of QQ browser andSogou browser through download promotion, and QQ Directory’s internal search service provided bySogou shall be adopted in priority. |
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ii. | Cooperation in respect of enhancing wireless search traffic |
a) | Provided that it will maintain user experience and product demand, Tencent shall make reasonable commercial efforts to maintain search traffic provided to mobile phone SOSO before theStarting Date. |
b) | Tencent will use search service provided bySogou in priority in QQ mobile phone browser. |
c) | Provided that it will maintain user experience and product demand, if it plans to place generic search function in relevant product or conduct the optimization and thematic operation of recommended search,Tencent shall use and optimize in priority the search service ofSogou in manners including but not limited to: optimization and thematic operation of recommended search, mobile phone QQ’sbuilt-in search service, Wexin’sbuilt-in search service,Tencent news and other mobile applications’built-in search services, search services on ROM, desktop, wallpaper and lock screen as well as search services of finger search. |
(2) | Tencent shall maintain and continuously increase the relevant data and service that it provides to SOSO business before theStarting Date, and shall make reasonable efforts to provide data support toSogou according to the following programs (such programs may be revised from time to time by theParties in the form of written agreements): |
i. | Tencent map plans to open generic API interface for data services, and make reasonable commercial efforts to meet the following objectives: |
a) | Tencent map will maintain and optimize the data provided to SOSO before theStarting Date, and also provide said data toSogou; |
b) | Tencent map must provide data to ensure that the map results searched bySogou web page have the same quality as that of the map results searched by SOSO web page before theStarting Date. |
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Tencent reserves the ownership of the map data, which are only forAPI-based deployment and use bySogou.
ii. | Tencent needs to maintain and optimize the data and services provided to SOSO, and also provide said date and services toSogou. |
(3) | Tencent will use reasonable efforts to promote PC terminal and mobile terminal products owned or in part operated bySogou (including but not limited toSogou Input,Sogou browser, etc.) according to the following programs (such programs may be revised from time to time by the Parties in the form of written agreements): |
i. | Promotion and cooperation in respect ofSogou PC input method |
a) | Provided that it will maintain user experience and product demand,Tencent will explore a reasonable and natural way based on enhancing user experience to promoteSogou Input Method and useSogou Input Method as the default scene input method for QQ chat. |
ii. | Cooperation in respect ofSogou mobile input method and otherSogou mobile products |
a) | Duringpre-installed cooperation with mobile phone manufacturers,Tencent makes reasonable commercial efforts to promoteSogou mobile phone input method. |
b) | Provided that it will maintain user experience and product demand,Tencent promotesSogou mobile products with the treatment for similarTencent products on each of its application distribution platforms, includingSogou mobile phone input method,Sogou Haomatong,Sogou map,Sogou voice assistant, etc., and said distribution platforms may include but are not limited to: mobile QQ, QQ mobile browser, myapp.com, mobile phone housekeeper and so on. |
c) | At mobile phone QQ and Wexin chat window and during chat process,Tencent activatesnon-active users ofSogou mobile phone input method based on the principle of enhancing user experience, and the specific implementation needs shall be otherwise determined through consultation based on specific product demand, and may include strong association user scene takingSogou Input Method as a “default scenario input method”. This cooperation may activate existing users ofSogou mobile phone input method, but it does not bring the increase in downloads. |
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(4) | Tencent will, to the extent possible, provide toSogou the same open service support it provides toTencent products; |
(5) | In correspondence with the search traffic provided byTencent toSogou,Sogou will make its reasonable efforts to develop the following applicable special functions forTencent in the “Sogou Input Method” and “Sogou Mobile Phone Input Method ” under the premise of maintaining user experience and product demands: |
a) | To develop expression symbols input forTencent “QQ”, mobile phone “QQ”, “Wexin” and other chat software; and |
b) | To develop game lexicon related toTencent games. |
(6) | Topre-set QZone entry as default setting on the start page of “my favourite” in theSogou browser; |
(7) | To make reasonable efforts to provide the “Sogou Haomatong” number identification database for “Tencent Mobile Phone housekeeper”, “QQ address book” and other mobile phone management software provided that it will not violate any applicable laws or the agreements executed betweenSogou and the relevant users; |
(8) | To make its reasonable efforts to provide the appropriate advertisement space in the “Sogou Mobile Phone Assistant” to promote the mobile App and mobile game products ofTencent provided that it will not cause conflicts with theSogou’s own App and any other APP ofSohu; |
(9) | In correspondence with the search traffic provided byTencent toSogou,Sogou will provide the relevant search service upon the request to be sent byTencent matrix search box; |
(10) | To utilize the resources of “Sogou Search” and “Network Alliance” to promote the products designated byTencent without compromising legal compliance and without prejudice toSogou user normal business promotion; |
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(11) | Sogou will, according to the following mode, establish promotion link for the channel specified byTencent on the site directory website (123.Sogou.com) without compromising legal compliance and without prejudice to Sogou user experience: |
Available resources | Location | Promotable Tencent Products | ||
Text link of famous-site directory
| /
| Tencent QZone
| ||
Text link of cool-site directory | Video Category | Tencent Video | ||
News Category | Tencent News | |||
Sports Category | Tencent Sports | |||
Finance and Economics Category | Tencent Finance and Economics | |||
Group Purchase Category | Gaopeng Group Purchase | |||
Mailbox Category | QQ Mailbox | |||
Community Category | QQ QZone | |||
Automobile Category | Tencent Automobile |
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Available resources | Location | Promotable Tencent Products | ||
Computer Category | Tencent Digital | |||
Mobile Phone Category | Tencent Mobile Phone | |||
News Channel | Information module on the left of first page, and inside page of news channel | Tencent News | ||
Sogou film and TV | All channels ofSogou Video | Tencent Video |
Article 2 PC Browser Business and Tencent Directory Pages
2.1 | During a period of twenty (20) years from theStarting Date, the default search tool on PC browser directory page (daohang.qq.com) and QQ directory page (hao.qq.com) ofTencent (collectively “Directory Pages”) will be set as Sogou’s search tool, andTencent agrees thatSogou has rights to comprehensively operate and commercialize the Directory Pages separately (including but not limited to determine product planning, page design, content operation and commercial resources development / utilization of the Directory Pages), and the operating income therefrom shall be solely attributed toSogou. Accordingly,Sogou shall bear the costs and expenses incurred from the overall operation and commercialization of the Directory Pages. |
2.2 | During the process of overall operation and commercialization of the Directory Pages,Sogou shall make best efforts to guarantee that (a) the contents on theTencent Directory Pages and the websites recommended by or linked to the Directory Pages are free from any content violating laws and regulations, or it shall promptly take effective measures to remove such contents (if found), (b) content operation, page design, display impression and user experience of the Directory Pages shall, in principle, meet the requirements in respect of overall operation and style ofTencent website and PC browser, and (c) there is no other operation behaviour materially violating laws and regulations or damaging the brand image and reputation ofTencent. Once any circumstance violating above requirements is found in the process of overall operation and commercialization of the Directory Pages bySogou (except such circumstance is caused byTencent itself),Tencent may requireSogou to correct immediately, andSogou shall compensate the actual loss and damages incurred byTencent due to such circumstance. |
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2.3 | During the process of the overall operation and commercialization of the Directory Pages, according to the requirements ofTencent,Sogou shall retain on the Directory Pages such number of links not less than the current number of website links underTencent for free use byTencent or its designated affiliated company. For other commercialized links, the charging method and condition thereof shall be the same as those ofSohu (as defined in Article 4.2). |
Article 3 Strategic Principles of Business Development and Resource Sharing
3.1 | Tencent andSohu agree that, within five (5) years from theStarting Date, if it sets any default general search tool in its products in the form of embedment or otherwise (different fromon-site/in-product search tools), such default general search tool shall be the search tool provided by Sogou. To clarify this intention,Tencent andSohu will not deprive users of their rights of choosing, at their discretion, search product services that compete withSogou. For the purposes of this Article, general search tool means a search tool whose search contents are from public information on various Internet websites that is available to third-party “Spider” program or from open database on various Internet websites;on-site/in-product search tool means a search tool that only extracts information within the website or products (including public ornon-public information) to retrieve and return results. The Parties are intended to extend the cooperation under this Article 3.1 by five (5) years, provided it does not harm the user experience. |
Article 4 Early Termination
4.1 | Where any of the following circumstances occurs, Tencent shall be entitled to immediately terminate this Agreement by a written notice to the other Parties: |
(1) | If (a) Sogou Inc. directly or indirectly issues or sells any stock orEquity Interest to anyRestricted Person, or (b) ifSohu directly or indirectly issues or sells any stock orEquity Interest ofSogou Inc. to anyRestricted Person; |
notwithstanding the foregoing,Sogou Inc. and Sohu shall sellSogou Inc.’s shares orEquity Interests through open market transactions afterSogou Inc.has been listed in United States, provided that the sale is conducted through open market transactions and the seller, the underwriter or broker (as the case may be) does not specifically arrange for the distribution or sale of shares orEquity Intereststo anyRestricted Person; and, in the event that aRestricted Person purchasesSogou Inc.’s shares or Equity Interests through an open market transaction, the purchase shall not be deemed as a termination event as long asSohu orSogou Inc. does not, in any way, provide any assistance for the transaction; or
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(2) | WhereSohu has a change of Control, and the person that acquires Control ofSohu is one or moreRestricted Person. |
4.2 | Relevant definitions are as follows: |
(1) | “Sohu” means Sohu.com (Search) Limited, Sohu.com Inc. and any other Sohu.com Inc. through which Sohu.com Inc. obtains Control over Sohu.com (Search) Limited; |
(2) | “Equity Interests” mean, with respect to any person, such person’s equity capital, membership interests, partnership interests, registered capital, joint venture or other form of title interest or any stocks, stock certificates, options, warrants, or other securities that can be directly or indirectly converted into or otherwise be obtained after exercise or exchangeable for such equity capital, membership interests, registered capital, joint venture or other form of title interest (whether or not such derivative securities are issued by the person); |
(3) | “Restricted Person” means any person and any of itsAffiliated Companies that has been confirmed byParties in writing from time to time; |
(4) | “Affiliated Companies” mean (i) in the case of a person other than a natural person, any other person who, directly or indirectly, Controls such person, is Controlled by such person or under common Control with such person, and (ii) in the case of a natural person, any person who is directly or indirectly Controlled by such person, or Relatives of such person. “Relatives” mean a natural person’s spouse, parents, grandparents, children, grandchildren, siblings, the siblings of such person’s parents, the children of such person’s siblings, the great-grandparents or the spouses of the foregoing (if any); |
(5) | “Change of Control” of a person means the circumstance under which such person is merged or consolidated with any other person or such person is merged or consolidated into any other person or after such person’s equity interest is acquired, the person Controlling such person shall immediately no longer have any direct or indirect Control over such person; |
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(6) | “Control” of a person means (i) ownership of more than 50% of the shares in issue or other equity interests or registered capital of such person, or (ii) the power to direct the management or policies of such person, whether through the ownership of more than 50% of the voting power of such person, through the power to appoint a majority of the members of the board of directors or similar governing body of such person, or through contractual arrangements or otherwise. |
Article 5 Confidentiality
5.1 | General obligations. Each Party undertakes to the other Parties that, without the prior written consent of the Party concerned (as the case may be), it will not and will procure its directors, equity holders, management, employees, agents or affiliates (collectively referred to as “Representatives”) not to disclose any Confidential Information to any third party, or use the Confidential Information in a way detrimental to the Party concerned (as the case may be). For purposes of this Article 6, the term “Confidential Information” refers to (a) information concerning the formation, operation, technology, intellectual property, safety records, investment, finance, transactions or other affairs of any Party, or information concerning the directors, management or employees of the Party (whether such information is transmitted in oral, written or other forms, and whether provided on, before or after the Starting Date); (b) provisions of this Agreement, the identity of the Parties and their respective affiliates; and (c) any other information prepared by any Party or any Representative that contains or otherwise reflects or is generated or derived from the information specified in item (a) above. |
5.2 | Exceptions. Article 5.1 of this Agreement shall not apply to: |
(a) | Disclosure of Confidential Information that is or becomes generally available to the public through no breach of this Agreement by any Party or any Representative; |
(b) | Disclosure made by a Party to its Representative or certain affiliate who need to know such information for performance of its obligations or exercise of its rights hereunder, provided that such Representative or affiliate (i) is subject to similar confidentiality obligations, or (ii) is subject to other binding professional confidentiality obligations; or |
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(c) | Disclosure required by rules of any stock exchange in which the shares of any Party or its parent company are listed or applicable legal, judicial or regulatory proceedings, or disclosure relating to any legal action, litigation or proceeding arising from or in connection with this Agreement, provided that the Parties concerned (as the case may be) shall be informed in advance to the extent feasible and any possible arrangement shall be made for confidential treatment. |
5.3 | Publicity. Each Party shall not, and each Party shall procure its management, employees, agents, affiliates, and the management, employees and agents of such affiliates not to, release any public announcement or make any remark on this Agreement or matters contemplated under this Agreement without consultation with, and written consent from, the Party concerned (as the case may be), unless required by laws or stock exchange rules, made pursuant to a court order, requested by the stock exchange on which the shares of such Party or its affiliate are listed, or required by any governmental or regulatory agency. |
Article 6 Notice
6.1 | Any and all notices among the Parties shall be written in Chinese and sent by personal delivery, registered airmail, fax or email to the following addresses: |
If to Tencent:
Tencent Building, Kejizhongyi Avenue, High and New Technology Park, Nanshan District, Shenzhen
Postal code: 518057
Recipient: Compliance Transaction Department
Email: legalnotice@tencent.com
With a copy to:
Tencent Building, Kejizhongyi Avenue, High and New Technology Park, Nanshan District, Shenzhen
Postal code: 518057
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Recipient: Investment & Merger Department
Email: PD_Support@tencent.com
If to Sogou Inc.:
Sogou Inc.
Floor 4, Willow House, Cricket Square, P O Box 2804, Grand CaymanKY1-1112 , Cayman Islands
With a copy toSogou Information as follows:
If to Sogou China, Sogou Network, Sogou Information or Shi Ji Guang Su:
Recipient: Zhou Yi
Email:yizhou@sohu-inc.com
Tel: 62728526
Address: SOHU.com Internet Plaza, Zhongguancun East Road No.1 Park, Beijing
Postal code: 100084
If to Sohu:
Sohu.com Inc.
PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands
With a copy to:
Recipient: Pang Xiaomei
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Email:xiaomeipang@sohu-inc.com
Tel: 62726169
Address: SOHU.com Media Plaza, Building No. 3, No. 2 Park Kexueyuan South Road, Beijing
Postal code: 100190
6.2 | Any notice shall be deemed to have been served: |
(1) | on the date of delivery if sent by personal delivery; |
(2) | seven (7) days from the date of posting (as evidenced by postmark) if sent by registered airmail; |
(3) | on the first working day after the date of transmission if sent by facsimile or telegraph; |
(4) | on the date on which the email reaches the server of the recipient if sent by email. |
6.3 | Any Party may change its address for notice at any time by delivering a written notice to all other Parties in accordance with this Article 6. |
Article 7 Miscellaneous
7.1 | Effectiveness. This Agreement is sealed or signed by and among the Parties and shall become effective on the day and year first written above. This Agreement is an amendment and restatement of the Original Agreement and shall supersede the Original Agreement. The Original Agreement shall automatically be terminated at the same time as this Agreement becomes effective. |
7.2 | Modification. Unless otherwise expressly provided herein, no modification, alteration or supplementary to this Agreement shall be effective unless made in writing and signed by each of the Parties. This Agreement will not affect any relationship existing among the Parties (if any) by contract or otherwise. |
7.3 | Binding Force; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their successors and permitted assigners. None of the Parties may assign this Agreement without the prior written consent of all other Parties. |
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7.4 | Governing Law; Dispute Resolution. The Parties explicitly acknowledge that, this Agreement and any dispute, controversy or claim arising from or in any way related to this Agreement or behaviors of the Parties hereto shall be governed by the laws of the PRC. Any such dispute, controversy or claim shall be settled through friendly negotiation among the Parties; if such negotiation fails, any Party may submit the dispute to Shanghai Arbitration Commission for arbitration in Shanghai in accordance with its arbitration rules then in force. The arbitration award shall be final and binding upon all Parties. |
7.5 | No Waiver. No failure of a Party to exercise any right, power or benefit under this Agreement shall operate as a waiver of that right, power or benefit, nor shall any single or partial exercise of any right, power or benefit prevent the exercise of any other right, power or benefit. |
7.6 | Severability. If one or more provisions of this Agreement are held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in force. |
7.7 | Force Majeure. If the performance of this Agreement is delayed, hindered or made impractical due to any reason beyond the reasonable Control of the affected party, including but not limited to natural disaster, war, riot, insurrection, embargo or other government restrictions (except unfavorable economic conditions, exchange rate fluctuations or insolvency) (each a “Force Majeure Event”), the obligations of the Parties hereto shall be deemed to have been suspended without giving rise to any liability for damage. The Party affected shall promptly inform the other Parties of the nature and scope of any actual or anticipated Force Majeure Event, and shall take all reasonable steps to mitigate the impact of the Force Majeure Event. |
7.8 | Relationship of the Parties; Independent Contractor. Nothing in this Agreement is intended to, or shall be deemed to, make any Party a legal representative or agent of any other Party; none of the Parties have the right or authority to incur any responsibility or obligation in the name of or on behalf of any other Party. |
7.9 | Liability for Breach of Contract. If any Party fails to properly perform any of its obligations hereunder, thenon-breaching party shall be entitled to notify the breaching party to rectify such breach and perform its due obligations within a reasonable period of time. If the breaching party fails to rectify its breach within the prescribed period of time, thenon-breaching party shall be entitled to seek any possible remedy according to applicable laws, including but not limited to claiming for compensation. |
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7.10 | Taxes and Fees. Unless otherwise provided in this Agreement, each Party shall bear and pay its own taxes and fees incurred hereunder, including but not limited to taxes, legal fees, accounting fees and other type of fees. |
7.11 | Headings. The clause headings in this Agreement have been inserted for convenience only and shall not constitute a part of this Agreement. |
7.12 | Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original, but all the counterparts shall together constitute one and the same instrument. |
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[Signature Page]
IN WITNESS WHEREOF, theParties hereto have caused thisAgreement to be executed by their respective duly authorized representatives on the date and year first written above.
Shenzhen Tencent Computer Systems Co., Ltd. | Sohu.com Limited | |||||
(Seal) | (Seal) | |||||
Signature: |
| Signature: |
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Name: | Name: | |||||
Title: | Title: | |||||
Sogou Inc. | Beijing Sogou Technology Development Co., Ltd. | |||||
(Seal) | (Seal) | |||||
Signature: |
| Signature: |
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Name: | Name: | |||||
Title: | Title: |
Beijing Sogou Network Technology Co., Ltd. | Shenzhen Shi Ji Guang Su Information Technology Co., Ltd. | |||||
(Seal) | (Seal) | |||||
Signature: |
| Signature: |
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Name: | Name: | |||||
Title: | Title: | |||||
Beijing Sogou Information Service Co., Ltd. | ||||||
(Seal) | ||||||
Signature: |
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Name: | ||||||
Title: |