contract and commercial resources

Explore our collection of resources for commercial work in Southeast Asia.

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templates

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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.

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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.

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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.

Word version PDF version

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.

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explore our case studies

Auckland based startup 90 Seconds is the world’s leading cloud video production platform, allowing brands to purchase, plan, shoot, edit and review video anywhere in the world, online and on mobile.

Tim Norton, Founder and CEO, and Richard Chew, CFO, recently talked to us about 90 Second’s Series A capital raise and how they have found working with Kindrik Partners.

the 90 seconds story

Tim has been building tech companies for the last 14 years from SaaS to video platforms. It was after founding a media company that profiled the startup community through print and video, that Tim realised how hard it was to create videos. He says that the process was varied, it was difficult to shoot between countries and despite the fact that online video content was growing in popularity, professional videos were not easy to make.

This led to Tim’s idea to connect people around the world in order to create professional videos. 90 Seconds was launched in 2010, with Tim and one other developer creating online video production tools, off the back of seed and angel investment.

The concept and tools grew, and Tim managed to solve his previous issues through the creation of a cloud-based platform, which lets users handle almost every part of the video production process in one place. Brands can purchase, plan, shoot, edit and review video from the platform anywhere in the world, online and on mobile.

It was always part of Tim’s vision to build a truly global company, so two years in Tim began to establish a presence in Japan, Singapore, Australia, on top of NZ and the UK. The company became profitable in 2014 and Richard also joined as CFO. In 2015, Tim decided to hire a Head of Talent and they grew from 20 to 78 people in under a year. They then secured NZD$11m through their Series A capital raise led by Sequoia in 2016.

90 Seconds have now worked with more than 1000 brands including Google, Barclays, PayPal, Visa and Sony to produce over 10,000 high quality, fast, easy and affordable videos, in 70 countries.

The company has a global team working across Singapore, London, Tokyo, Manila, Sydney and Auckland, and they hope to open new offices in San Francisco, New York, Hong Kong and Berlin going forward.

Tim thinks that 90 Seconds has just scratched the surface of the global opportunity for cloud-based video production. They will continue to focus on their global growth and make video production even faster, as fast as Uber, publishing professional videos within anywhere between 24 hours to two to 3 weeks, no matter in the world the video creators are. They also plan to continue to develop the mobile version of their software so clients can manage every part of the production process on their tablets or smartphones.

90 Seconds Product Photo - Project with shoot in background

challenges

Tim and Richard both agree that talent acquisition and management is the key to ensuring the success of 90 Seconds, as well as scaling growth at the right time. Tim says that we always need to hire as the business continues to grow, finding the right people to do the job within budget, is definitely an art.

There is definitely competition in the industry which comes in two types. The first being companies who have been around for the same time or longer than 90 whose established business practice. The second is startups, who have the speed and agility to move quickly and innovate. However, Tim says 90 Seconds has a unique position given their stage of growth. They not only understand the industry and are experienced enough to compete with established business but they are also nimble enough to compete with new ones, having the capacity to completely revamp their current product.

working with kindrik partners

Tim and Richard have both worked with lawyers throughout their careers and had varied experiences, prior to their first capital raise, 90 Seconds brought lawyers in get the job done and keep legal costs at a minimum.

They were recommended Kindrik Partners by Sequoia, the key investor leading the capital raising process, who have invested in a number of the world’s leading tech companies including Apple, Google, YouTube and Airbnb. Lee Bagshaw’s was the lead partner for the deal given his background in fund raising for global startups and extensive experience negotiating deals with Sequoia.

The 90 Seconds team worked closely with Lee and Chris Wilson on the intricate transaction which involved a re-domicile, re-structure and Series A all rolled into one, as well as a broad range of investors, from publicly listed companies, venture capital firms and private investors such as SKY TV New Zealand, Airtree Ventures, Beenext and Oleg Tscheltzoff founder of Fotolia.

Tim describes the process as being much longer than he expected, taking 6 months. He says it was like a giant Jenga of risk, investors and issues to manage and at times he was keen to concede on points to move the deal on. However, he says Lee kept them focused on the key issues and eventually they nailed it, and got a deal far better than I expected with Tim feeling more powerful as a founder and entrepreneur through Lee’s advice. Richard also notes that Lee’s knowledge and experience with Sequoia was completely invaluable.

Tim and Richard both agree that this process showed how important it is to partner with lawyers who have hands on experience in dealing with the legal and commercial complexity of capital raising for a global company. Tim notes that when you work with a range of investors on a global deal, you need a legal partner to get the deal done and Kindrik Partners provided the best advice which got them a big outcome.

summing up

90 Seconds are an inspiring example of a company with humble NZ beginnings, demonstrating a fast-growing and rapidly scaling business model, as well as attracting major technology investment players.

Sequoia’s backing shows that big US VCs now view New Zealand startups as global opportunities. Kindrik Partners will be closely watching 90 Seconds continue its rapid growth to become a significant global player.

Explore 90 Seconds.

[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 property startup 99.co likes a challenge. Dominated by well funded regional players, there would be easier sectors to disrupt than online property. However 99.co is fighting hard with a unique proposition. The company has raised two rounds of funding since incorporation and is backed by high-profile investors including Sequoia Capital and Facebook co-founder, Eduardo Saverin.

Founder and CEO, Darius Cheung, talked to us about the company’s progress, its most recent capital raising transaction in 2015, and how they have found working with Kindrik Partners.

the 99.co story

Darius is one of Singapore’s celebrated young tech entrepreneurs having sold mobile security startup tenCube to McAfee in 2010. This was a decent sized exit for a Singapore tech startup at the time. With the current hot funding environment and massive interest in mobile disruptive technologies in Southeast Asia, Darius is now looking to build a company for an even larger exit.

Not surprisingly, given the city state’s rapid growth, Singaporeans have always had a real interest in property. So 99.co is playing in a compelling space. Singapore has over 30,000 property agents many of which use online real estate platforms such as 99.co. The company recently set up an Indonesian website and plan to get going in Malaysia and Thailand further down the line.

99.co differentiates itself from larger competitors by promising a more intuitive search experience, where the rankings for listings are influenced by the quality of the published content. The site, for example, could favour listings with more photos or with value add information such as commute times or local amenities. This contrasts with the traditional model where the level of fees paid typically pushes classifieds higher. Darius believes that users will increasingly seek this kind of consumer friendly experience.

99.co charges agents a basic subscription fee to list their properties. The company has, however, recently launched a new product called 99PRO – a subscription model where agents can unlock additional features like interactive map searches and new data.

challenges

Darius agrees that the competition is tough to crack in Singapore and the region, given the dominant players. Content is king – the number of listings is fundamental to the success of the business. Bridging the gap, and chasing the platforms that have the majority market share, requires innovative offerings. Plus it’s a crowded market. Aside from other startups trying to challenge those established players, print media still retains a surprisingly sizeable chunk of the market.

The nature of 99.co’s subscription model means the company will need to add alternative revenue streams over time.

Finally, talent acquisition in Singapore and building the 99.co team has been difficult given the number of other startups also hiring sought-after developers.

working with kindrik partners

Lee Bagshaw was introduced to Darius by one of 99.co’s investors. Lee has helped the company through each of its financing transactions. Most recently in 2015, Lee, supported by Chris Wilson, advised on the company’s series B transaction led by Sequoia and Saverin.

Darius’ previous view on lawyers had been that they were expensive and it was not always easy to see their value. He describes working with Lee as a breath of fresh air. Whether by email, on the phone, by WhatsApp or even in the passenger seat of Darius’ car, Lee’s advice was always simple to understand, but with real value add.

Darius was impressed with Kindrik Partners’s knowledge of VC financing deals in Southeast Asia. He says Lee and the team were also very fast, generally turning documents around in under 24 hours. Darius believes that, by working for a tech focussed firm, the Kindrik Partners lawyers have a greater connection with startup founders, combined with unique experience. Throughout the negotiations, Darius found that even if the company could not secure the best outcome on all points, Lee and Chris ensured that he understood clearly the implications, so he could quickly move on.

summing up

99.co are operating in an exciting space in Southeast Asia. Real estate tech companies globally have grown rapidly, achieving some astonishing valuations.

Sequoia’s and Saverin’s backing shows that notable investors are looking carefully at this space in Southeast Asia, particularly for platforms that are distinguishable from the others.

Kindrik Partners will be closely watching 99.co continue its growth to become a significant online property player in Southeast Asia.

Explore 99.co.

[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 company CardUp is an online platform that lets individuals and SMEs pay for expenses like taxes, rent, or even payroll, using their credit card – even if the recipient doesn’t accept cards.

Cardup raised a seed round lead by top tier venture firm Sequoia Capital in late 2017. We spoke to founder Nicki Ramsay about Cardup’s journey so far.

story

Nicki got the idea for CardUp while working at a major credit card provider in Singapore. She saw that a lot of big ticket items (like tax and rent) could not be paid for with a credit card, because the recipients were not willing to go through the hassle and fees associated with the setup process. This meant that card holders were not getting benefits from these big payments such as being able to access their credit facility or earn loyalty reward points. In addition, banks were losing out on the fees that would be linked to an increase in credit card spending.

CardUp solves this by flipping the existing card processing model, acting as the middleman between cardholders that want to use their card in more ways and recipients who don’t accept card payments. CardUp users benefit from using the credit line on their card to extend the payables period for these expenses, as well as earning credit card loyalty points and rewards. In addition, the recipient does not need to have a CardUp account to receive credit card payments.

Finding the initial capital and relevant expertise needed to get a company off the ground is a challenge for a lot of the founders that we work with. This is particularly common for solo founders like Nicki, as they are not able to draw on the financial resources and connections of their co-founders. In Nicki’s case, she decided to join The Finlab (United Overseas Bank’s Singapore fintech accelerator), which was a great way to access mentorship and exposure to a wide investor community.

While at The Finlab, Nicki spent a lot of time talking to financial institutions, to get them on board with cardholders using the platform. CardUp has since secured partnerships with many of Singapore’s major banks to promote CardUp’s services. The company also promoted the platform to individuals and SMEs through its online marketing content. The focus of this material was to educate users on the platform’s benefits and how the platform works.

the financing deal

As CardUp gained more users, the company needed to raise some money to further develop its platform.

Nicki pitched to a wide range of VCs in Southeast Asia. Sequoia was a natural fit as they are deep in the payments space, and CardUp is disrupting traditional payment processing models.

Other investors included SeedPlus, who were originally introduced to Cardup by The Finlab.

The company completed its ~US$1.7m seed round in late 2017. The investment has allowed the company to triple the size of its team in just a few months.

working with us

Nicki told us that Kindrik Partners’ depth of knowledge on VC deals in Southeast Asia was a massive help throughout the capital raising process:

Kindrik Partners added a lot of value for us during the negotiation with Sequoia as they have vast experience with startup and VC deals in the region and are very familiar with the different permutations of VC term sheets. Also, because they have acted for a lot of startups taking investment from Sequoia, they saved us time and cost by telling us which points Sequoia would likely be open to negotiating.

Overall, Nicki said that the Kindrik Partners team were extremely knowledgeable, and professional to deal with.

Having worked with Nicki, we are now certain that it won’t be long before everyone will be using their credit card for important payments, like their legal fees!

Explore CardUp.

[Note: The firm’s name was changed to Kindrik Partners in July 2020 and references to the firm’s previous name have been updated.]