contract and commercial resources
Explore our collection of resources for commercial work in Southeast Asia.
templates
This is a simple company friendly consultancy agreement for engaging independent contractors or consultants (e.g. individuals or sole operator companies) to work within a business.
This template includes a restraint on the independent contractor to ensure that the independent contractor does not jeopardise the company’s business (by competing or similar) during the term and for a set period after. To be enforceable, a restraint must be reasonable. This, in turn, will depend on the facts relating to the agreement. However, the longer the restraint and the broader the restrained area, the more likely that arguments could be raised about the enforceability of the restraint.
using our templates
Use of a template by business users is free of charge and is subject to you agreeing to our template terms of use.
This document is intended for use by the founders of a startup company to formally transfer intellectual property relevant to the business, products or services of the company, to that company.
Before completing this deed, we suggest that companies and their founders first work to identify and record the intellectual property that the company intends to use (or is already using) in its business, including details of who:
- created the intellectual property, and on what basis (e.g. as a founder, employee or external consultant of the company)
- owns that intellectual property and on what basis (i.e. if the company owns intellectual property because it was created by its employees in the course of their employment, this should be recorded)
This will help:
- to identify intellectual property that needs to be transferred by a founder or consultant, etc. to the company (and to properly describe that intellectual property in a deed of assignment)
- to prove ownership of the company’s intellectual property in the future, e.g. in a capital raising or M&A transaction.
using our templates
Use of a template by business users is free of charge and is subject to you agreeing to our template terms of use.
This is a simple document to outline the main in principle terms of a proposed commercial relationship. The document is not legally binding (other than the confidentiality, termination, and governing law provisions in part D).
Other than the statement that the document is not intended to be binding and part D, there is no suggested content included – the document is simply a framework for the parties to record the in principle commercial terms that have been agreed, prior to preparing a formal agreement.
Although the letter of intent is non-binding, it can create moral or ethical obligations that are difficult to back away from. It is therefore important not to over-promise, and to set out relevant assumptions.
This document does not include an exclusivity provision – either party is free to enter into negotiations, or contract, with third parties for a similar or competing relationship.
using our templates
Use of a template by business users is free of charge and is subject to you agreeing to our template terms of use.
This is a simple mutual (or two way) confidentiality agreement setting out the terms on which each party will keep confidential the other party’s information.
It has been drafted to be fair to both parties and to enable easy signing (without the need for lengthy negotiation). If the purpose for which the information is being exchanged is highly sensitive or has unique aspects, consider whether a more belts and braces agreement may be required.
using our templates
Use of a template by business users is free of charge and is subject to you agreeing to our template terms of use.
Before you start a new business relationship, it’s often sensible to sign a non-disclosure or confidentiality agreement (NDA) so that you can explore the proposed relationship freely – in the comfort that your commercially sensitive information is protected.
NDAs are usually fairly standard, but there’s a handful of points that it’s a good idea to double check before you sign on the dotted line.
who are you contracting with?
A NDA may be a simple document, but its terms cover your most valuable information. So it should state the other party’s full legal name as a contracting party, or you may have problems enforcing the NDA.
what information is covered?
Make sure the description of confidential information covers all of the types of information that you will be sharing, e.g. the NDA should cover oral information as well as written information, so that things discussed at meetings are protected. It’s also a good idea to cover any information shared before the date of the NDA (in case you’ve given the other side an early taster of what you want to discuss).
what can your information be used for?
The NDA should include a clear purpose for which the information may be solely used, based on why you are sharing the information, e.g. for the parties to discuss a possible joint venture related to [X]. By limiting use of information to a purpose, it means the recipient can’t use your information for another reason.
It also pays to check to whom the recipient can disclose your information – usually this is limited to named classes of persons (e.g. professional advisors and employees) but make sure you’re happy for each class of person to receive the information. Of course, the more your information is passed on, the less control you have. Given this, it’s a good idea to:
- limit disclosure to a need to know basis for the purpose
- require these additional persons to be subject to similar confidentiality obligations too.
NDAs usually have stated exceptions to the restriction on disclosure. Keep these as narrow as possible, e.g. limited to where the recipient is compelled to disclose the information by law, a stock exchange that governs the recipient, or court order.
when should confidentiality end?
Often confidentiality obligations continue indefinitely, regardless of whether the NDA or purpose has ended, i.e. if the other party still has your information, it should still keep it confidential. Increasingly though, NDAs limit confidentiality obligations for a set period only (e.g. 3 years), meaning once that time period expires, the other party can use your information for any purpose. A time limit may not be an issue depending on what type of information you are sharing, e.g. financial information usually has a short shelf-life but IP (and technical descriptions of IP) may need longer protection. So, before agreeing to limited duration confidentiality, make sure you’re OK with unrestricted use of your information after that time or you place a positive obligation on the recipient to return or destroy your information before the end of the period. Another way to address this risk is to restrict access to the information that you are concerned about (e.g. read-only access onsite at your premises).
liability and remedies
Liability under a NDA is normally unlimited – reflecting the significant loss that the discloser could suffer if their information was misused. If there is a cap, make sure it’s meaningful (i.e. large) and takes account of the damage your business could suffer if your confidentiality was breached.
The NDA should also allow you to obtain court orders to protect your confidentiality (e.g. an order requiring the other party to specifically perform the NDA) because, if you have to sue for damages, the horse has bolted and your information is in the hands of someone who shouldn’t have it. A court order can be obtained quickly to prevent a current disclosure or breach. However, this remedy needs to be expressly stated because a court will be reluctant to grant an order of this type if it thinks damages provide you an adequate remedy.
use our free template
If you would like a standard NDA to use or to act as a comparison if the other side supplies their NDA, check out our free template NDA.
explore our case studies
Malaysian point of sale (POS) startup StoreHub is on a mission to help businesses execute better, through innovative technology and great design.
Wai Hong Fong, StoreHub CEO and co-founder, recently talked to us about his company and how he has found working with Kindrik Partners on their Series A capital raise.
the storehub story
Wai Hong refers to himself as an accidental entrepreneur. Most of his family are professionals and he says that it was a combination of kind of stumbling into opportunities plus being frustrated with a problem and wanting to solve it, which led him to where he is today.
After completing his BA in arts, media and philosophy at the University of Melbourne, he co-founded and became Managing Director at OZHut a lifestyle online retailer, where he did everything from writing code, web development and design, search engine optimization and even running the packing tables at the warehouse.
After 5 years at OzHut, he moved to China to study Mandarin and met a friend running a small retail store who asked him to look at his POS given Wai Hong’s e-Commerce background. He realised how terrible it was and not only wanted to help his friend fix this but other small to medium businesses that required offline and online sales support.
Wai Hong knew that the iPad POS was taking off in the US but there were no alternatives in Asia. With the belief that it was time for technology to revolutionise the traditional POS industry in Asia, and to help build better businesses, he co-founded StoreHub in 2013, along with current Chief Technology Officer, Congyu Li.
In the first 12 months of development, they bootstrapped the company then received a small investment from an angel investor, as well as a grant from Malaysia’s Cradle Fund. Wai Hong says that this initial funding allowed them to grow their product quickly and we’ve been cashflow positive and profitable since late 2015.
StoreHub is now a cloud-based iPad POS with inventory management, reporting and CRM, accessed via a mobile responsive backend, with over 850 retail stores paying a monthly subscription and customers in Malaysia, Philippines, Thailand and Indonesia.
In addition to the POS product offering, StoreHub supports its product with exceptional customer service based on the business to consumer experience which is not commonly offered by the industry.
In 2016, StoreHub announced a partnership with Malaysia-listed payments giant GHL Systems to deliver a fully integrated mobile point of sale (mPOS) credit card terminal and iPad POS solution. They also secured USD$850k in their Series A capital raising round from 500 Startups, as well as investors in China, Singapore and Malaysia.
Wai Hong says that StoreHub now plans to grow at least another 5 times its current size in the next year, add complementary products to their core offering and also enter new South East Asian markets, such as Thailand and Philippines.
challenges
Wai Hong notes that the biggest challenge for StoreHub is hiring and managing people, especially on a shoestring budget, talent acquisition and management is key.
The POS market is also highly competitive however StoreHub manages to differentiate because of their broad offering and leveraging their customer service focus which is generally seen as an afterthought in the industry. Being product and tech obsessed has also helped them stay ahead of the pack.
working with Kindrik Partners
Wai Hong primarily dealt with lawyers for the angel investment which involved local lawyers but it unfortunately turned out to be a painful and expensive experience.
He was then introduced to Kindrik Partners partner Lee Bagshaw through former Kindrik Partners lawyer, now investment analyst at tech VC Monks Hill, Lucy Luo. Lee supported StoreHub through the Series A capital raising, including drafting all of the documents which is unique for a deal like this, as investors usually provide the first round of documents.
Wai Hong says that it was our first serious cap raise and it was a refreshing experience given the angel investment round, knowing if I had an issue I would be getting sound advice. It made a huge difference that Lee thoroughly understood the South East Asian venture capital landscape, particularly as they had to negotiate with the investors.
Given Lee really understood StoreHub’s business, Wai Hong would work with him again on further corporate governance work like an Employee Share Options Scheme. He has also recommended both Kindrik Partners and Lee to a whole bunch of startups.
He says not only was Lee fast at delivering the work which helped StoreHub maintain their professionalism with investors, but he gets the space, market standards and provides valuable industry insights. Wai Hong thought Lee’s wealth of experience showed specifically when he advised on the all important term sheet, his advice and guidance was spot on.
Wai Hong also thinks that the Kindrik Partners Templates are also pretty cool, providing good information and learning points, and are a good starting point for legal work.
summing up
StoreHub’s growth is a testament to the company’s commitment to building a product and providing outstanding customer service. Kindrik Partners can’t wait to see what Wai Hong and the team have planned for their ambitious next steps.
Explore StoreHub.
[Note: The firm’s name was changed to Kindrik Partners in July 2020 and references to the firm’s previous name have been updated.]
Singapore-based Pixibo provides personalised size and fit recommendations in real time for online retailers and their customers. The fashion-tech startup worked with Kindrik Partners on their recent series A raise.
We spoke to founder and CEO Rohit Kumar on Pixibo, the capital raising journey, and working with Kindrik Partners.
pixibo’s story
Rohit is an ex-Googler with experience across Europe and India, before heading to Singapore to head up operations for e-commerce advertising company Sociomantic. Between 2013 and early 2016 he launched and managed all of Sociomantic’s APAC operations and was part of the team that sold the business to dunnhumby, a Tesco company.
It was at Sociomantic that Rohit identified an issue plaguing fashion e-commerce sites. People were browsing clothes online, but very few of those visits converted into sales. “The average conversion rate is 1.5%”, says Rohit.
Pixibo’s technology was formally launched in 2018, after a few years in development. The platform makes real-time size recommendations, personalised for every shopper and for every brand and SKU. For a retailer this boosts conversion rates, reduces return rate and improves customer satisfaction. Its size recommendation engine is entirely white labelled and can be natively integrated into online stores.
“In online shopping, there’s a lot of pain points, from finding something you like, to working out which size is correct for you,” says Rohit.
“Decision fatigue can come in, reducing sales and resulting in increased return rates. The Pixibo platform works to reduce the friction felt by the consumer and the retailer.”
working with kindrik partners
“I was educating myself about series A rounds when I came across Kindrik Partners’s content online,” Rohit says.
“It was my first time doing an institutional round so I was spending more time online trying to get my head around the legal terminology and the types of things that show up. Drag alongs, tag alongs, liquidation preference clauses. There’s a lot to understand.”
(confused? see our startup glossary )
“It looked like Kindrik Partners were the best lawyers for startups,” says Rohit.
“It was clear from the content that was available online that it was their area of expertise. When I eventually needed to bring in a lawyer to help with my round, I reached out.”
on the series A round
Pixibo already had several angel investors prior to their series A round in 2018, but the startup did not have any VCs on board, so the experience was new.
“We had VPs from Google who invested at an early stage, as well as strong private angel investors. But this was the first institutional round, and it felt very different.”
A big learning was how much longer the process took. “I thought you’d just go out to market, pitch, and then get them to sign. I eventually came to understand the level of process that institutional investors require, and how this stretches out the timeline.”
“There’s a great level of detail required. From investor interest to the term sheet to drafting the shareholder’s agreement, share subscription agreement and the whole nine yards, to signing, to getting money in the bank… it can take a long time!”
Fortunately, runway was less of a concern for Pixibo. “We weren’t in a rush. We had revenue, so there was no immediate need to get funding in”, says Rohit. “We already had a recurring revenue from our licence fees we were charging. That started conversations for us with investors, too.”
working with kindrik partners
Rohit found working with Kindrik Partners and partner Lee Bagshaw provided a lot of value during the capital raising process.
“Working with Lee was great. He was very responsive to my requests and concerns and was always happy to get on a call if need be to walk through things with me.”
Kindrik Partners’s experience in capital raising in Southeast Asia was also an asset to Pixibo.
“As a first time founder, sometimes you’re like wait, hang on, why is that in there? Lee was invaluable in these situations. He understood what terms were negotiable and what terms weren’t, and was instrumental during all of the back and forth with investors.”
tips for founders embarking on their A round
Rohit has a few tips for those entrepreneurs who are considering going out to do their series A round.
- start out 6 -8 months before you need the capital: especially if it’s your first institutional round (it gets easier with a follow-on round, because you’ll have existing investors to help you get your foot in the door).
- consider a rolling close: since you’re looking for investors who are the right fit in a long-term partnership, having a rolling close allowed Pixibo to get the money in the bank from the investors who were committed, while continuing to find the perfect fit to close out our round.
- beware the temptation to think that any money will do: in the beginning, the temptation is to look for anyone with a cheque book, but then you get smarter. Find the VC’s thesis and their sweet spot, and get smarter at looking at their portfolio to see if you fit in. Who will be interested in your story?
- don’t raise too soon: Traction is important. Wait until you’re in a strong position to raise, if you can. In our case, as we’re B2B, we had clear proof points that our product works, solves a real problem for online retailers and that they are willing to pay us for it. Investors will want to see that you have put in the hard work and that capital will accelerate growth.
- have a plan for the money. You have to articulate why you need capital now, and how it will help your business.
what’s to come for pixibo
The future is bright for Pixibo, and Rohit is looking ahead to expand into new markets. “The most exciting thing about us is that we’re location agnostic. The problems retailers have in Singapore are the same ones that they have in Sydney. The opportunity is massive.”
[Note: The firm’s name was changed to Kindrik Partners in July 2020 and references to the firm’s previous name have been updated.]
about X0PA.AI
Singapore-based X0PA.AI is a SaaS talent hiring and recruitment platform that uses AI and data science to match applicants to roles, as well as predict issues such as attrition, loyalty and performance.
CEO Nina Suri has scaled the team over three years to twenty-five employees, located across Singapore, India, and the UK, with plans to start in the UAE.
X0PA recently implemented an employee share option plan (ESOP) and Nina shared her experience.
why implement an ESOP
“Having had over twenty years of entrepreneurship, I knew I wanted to build a culture of ownership and inclusivity, and ensure that our team felt involved and satisfied”, says Nina.
“An ESOP is one way that our employees can feel like they’re a part of growing something – that our success is their success”, says Nina.
putting the ESOP in place
The company originally drafted some ESOP paperwork when they first incorporated, but as they grew, X0PA’s company secretary recommended that it be replaced with something more robust and market standard.
“We learned that the ESOP needed major amendments in order to be more in line with what is typically seen in the market in Singapore, and reflect what investors are likely to expect”, said Nina.
Nina reached out Kindrik Partners after the firm was recommended to them by their company secretary. XOPA worked with Sarah Yen in Kindrik Partners’s Singapore office, who was able to create the right framework for the startup.
“We were looking for a firm who advised a lot of startups in Southeast Asia. Sarah took the time to explain and really make sure that we understood the mechanics of how the ESOP operated. This made it easier for us to communicate that to our employees.”
“It’s important when putting together an ESOP to consider several different factors”, says Sarah. “What works for the company, what is standard in the market to attract quality talent, and what your investors and most importantly a future potential buyer might expect to see.”
about the ESOP
A X0PA employee is invited to participate in the ESOP once they have been with the team for twelve months, and if they’re considered a ‘high performer’.
“At the moment we have a rockstar team, and 100% of the people who we have hired have been invited to join”, says Nina.
“In my previous venture I also felt strongly about letting my employees be directly involved – but I gave them straight equity. It was a more traditional business with a partnership model.”
“This time, an ESOP seemed more appropriate – it was a more scalable model and more appropriate for the type of company we wanted to build.”
X0PA’s management team put aside 10% of the company’s equity towards the ESOP, with the expectation that this allocation would last at least five years. They set the exercise price by the valuation of the company at the time of allocation.
Allocations were not standardised per employee but were allocated according to the contribution and importance’ of the employee’s role in the organisation, according to Nina.
The X0PA team also included an acceleration clause in the ESOP – if the company exits before the vesting period, their employee’s options fully vest.
advice for other founders
“We weren’t familiar with the nitty gritty of putting in place an ESOP – it was a new experience for us”, says Nina.
“My advice would be to go with a lawyer who is experienced with startups and ESOPs, so you don’t have to go through the complications that we went through as we started to scale”, she says.
Nina also stressed that it was important to familiarise yourself with the mechanics of your startup’s ESOP so that management could communicate with staff effectively about how it worked.
Nina also had some tips about how to communicate with a team when implementing an ESOP.
“We kept it very simple for our staff. We broke down into the main points – what is the ESOP, what does it mean for them, what do they get, how much do they get. We didn’t want to get them worked up about the legal language.”
Nina also made sure that she sent each team member an individual email after the scheme was introduced to the company, confirming what the ESOP meant, how that individual’s options vested, and what would happen to their options in different scenarios.
“You need to make sure your team understands what the ESOP is. If you’re giving them something, and they don’t appreciate it, and then what’s the point? It’s best to spell it out and make sure that everyone understands – then you’re all working towards a common purpose.”
what’s next for X0PA?
“We’re starting to move from startup to scale up now. We’re experiencing massive acceleration and growth, with several Government departments, enterprises, polytechnics and universities as clients”, says Nina.
“Our product is ready, and strong, and we’re ready to grow and help our clients with their digital transformation. We are focused on growth both from increasing market share in the markets we operate in as well as market expansion point of view.”
[Note: The firm’s name was changed to Kindrik Partners in July 2020 and references to the firm’s previous name have been updated.]
Explore our other case studies here, or access our full library of ESOP guides and templates via our resources section.