Hawaii NDA Template
Last Updated:
A Hawaii NDA, or “nondisclosure agreement,” is a legal agreement involving two or more parties outlining the confidential information that must be kept under wraps. Startups and businesses often use NDAs as a safety net to deter employees, potential business partners, and others from leaking sensitive information. In doing so, NDAs help preserve your company's trade secrets and valuable details—such as your business strategy or client contact list—keeping them away from public view and competitors' reach.
Trade Secret Definition in Hawaii
“Trade secret” means information, including a formula, pattern, compilation, program device, method, technique, or process that:
(1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. (Hawaii Uniform Trade Secrets Act HRS § 482B-2)
Thank you for downloading!
How would you rate your free form?
Read on to learn more about Hawaii NDAs, including:
What's included in a Hawaii NDA?
Here are some key components that are typically included in a Hawaii Nondisclosure Agreement:
-
Disclosing and Receiving Party
-
Definition of Confidential Information
-
NDA Purpose
- Use of Confidential Information
- Limited Access to Confidential Information
- Exclusions - What's not Covered
- Term of Confidentiality Period
1. Disclosing and Receiving Party
Within the anatomy of an NDA, the party "disclosing" the confidential details is aptly named the Disclosing Party. On the receiving end is the Receiving Party, who are privy to this hush-hush information. In the case of unilateral NDAs, these labels remain consistent. However, for mutual NDAs, each party dons both hats—as both the discloser and recipient of information. Here's something to pay attention to: if you're an individual, not a business, involved in either sharing or receiving information, your name—rather than "Company Name"—should be clearly stated.
This nondisclosure agreement (this “Agreement”) is dated [Date] (the “Effective Date”) and is between [Company Name of Disclosing Party; e.g. “Max Studios, LLC”; if you do not have a formal legal entity, use your legal name, e.g. “Max Smith”], (the “Company”), and [Company Name of Receiving Party; if receiving party does not have a formal legal entity, use their legal name] (the “Recipient”).
2. Definition of Confidential Information
Within your Non-Disclosure Agreement, you're required to define the particulars about what's being earmarked as "confidential." The logic is simple but let's illustrate with an imaginary situation. Suppose your boss designates every piece of information they share with you in the next 2 years as confidential. A year rolls around, and in passing conversation, they mention the forecast predicts rain tomorrow. You later tell a friend it might rain tomorrow—did you leak confidential information? Clearly not!
Any court would instantly dismiss an umbrella clause as overwhelmingly broad. However, on the flip side, if the definition is too skinny, you could unintentionally disclose confidential information. The Receiving Party then gains a licence to share this information freely. Although many businesses tend to stick with a mainstream definition model as demonstrated in the template, if you're unsure, give our comprehensive post a gander—it covers defining confidential information in your NDA in great depth.
“Confidential Information” means any information that is proprietary or unique to the Company and that is disclosed by the Company to the Recipient during the term of this Agreement, including the following: trade secret information; matters of a technical nature such as processes, devices, techniques, data and formulas, research subjects and results; marketing methods; plans and strategies; information about operations, products, services, revenues, expenses, profits, sales, key personnel, customers, suppliers, and pricing policies; and any information concerning the marketing and other business affairs and methods of the Company which is not readily available to the public. “Confidential Information” also includes information of others that (1) is disclosed under this Agreement, (2) the Company is obligated to protect from disclosure or restricted from using or both, and (3) that would constitute “Confidential Information” if the information belonged to the Company.
3. NDA Purpose
You'll notice in every NDA, including the template, an obligatory field called "Purpose." Here you'll state the reason—for instance, "to create a prototype product for the disclosing party," or "to examine the possible business synergy between the parties"—behind the NDA. This section is key because it explains why the confidential information is necessary for the Recipient.
For instance, if you're hiring a coder to build your website and share your business blueprint for them to understand your specific needs. In such a scenario, you'd want to restrict the purpose to, say, "development of..." and then elaborate on the different facets of the website the coder will be crafting.
Without that purpose restriction, the coder could just as easily set up a similar business using the privileged information. That being said, in most cases, the generic language in the template, "evaluating the parties' abilities to explore one or more business opportunities," is adequate.
Here's an example of a purpose definition.
“Purpose” means evaluating the parties’ capabilities in anticipation of pursuing one or more business opportunities.
4. Use of Confidential Information
The use of your confidential information should align with the initial purpose for signing the NDA. Effectively, this provision makes it clear that confidential information should be used solely for the stated purpose. It might appear self-explanatory, but consider an alternate situation where the confidential information is being manipulated to exploit the company. This key provision acts as a safety latch, ensuring the security of confidential discussions, protecting both parties from external threats and potential harm.
The Recipient shall use Confidential Information only for the Purpose. Unless otherwise agreed in writing, neither party shall disclose to a third party the fact that discussions or negotiations are taking place concerning the Purpose or any of the terms or other facts relating to the Purpose, including the status of negotiations between the parties.
5. Limited Access to Confidential Information
When you hand over your information to the "Recipient," it's not always a straightforward deal—what if the Recipient is a company entity? What if they need to consult their lawyer? These aspects are addressed under the "Limited Access" segment of your NDA.
In most instances, the language in the template is just fine. However, it's always a good idea to foresee who will require access to the information, and limit the use to those individuals. The Recipient should ensure that whoever they disclose the information to is also bound by an NDA with identical terms.
The Recipient shall protect the Confidential Information from unauthorized use and disclosure using the same degree of care that it uses with respect to its own information of like importance, but no less than a reasonable degree of care. The Recipient shall retain the Confidential Information in confidence and shall not disclose Confidential Information to any third party without the Company’s prior written consent. However, the Recipient may disclose the Confidential Information to employees, contractors, consultants, and authorized representatives of the Recipient who (1) require access to the information for the Purpose, (2) are informed by the Recipient of the Recipient’s obligations under this Agreement, and (3) are bound by contract or fiduciary duty to obligations of confidentiality and use restrictions with substantially similar function, purpose, scope, and effect to those of this Agreement and that are at least as protective of the Confidential Information as this Agreement.
6. Exclusions - What's not Covered
Following the "Limited Access" section is "Exclusions" in your NDA. Including exclusions increases your NDA's enforceability in court (should it ever come down to that). The only exclusion you may choose to drop is 4(a)(1)—but this is solely if you've previously disclosed some confidential information to the Recipient. In every other case, the exclusions quoted should cover most scenarios efficiently.
(a) This Agreement imposes no obligations upon the Recipient with respect to Confidential Information that: (1) was known to the Recipient before disclosure by the Company as evidenced by contemporaneous records; (2) has become publicly available through no fault of the Recipient; (3) is disclosed to the Recipient by a third party that has the right to make the disclosure to the Recipient and that does not have any obligation of confidentiality with respect to the Confidential Information; or (4) is disclosed by the Recipient with the Company’s prior written consent.
(b) If the Recipient is required by any governmental agency, court, or other judicial or regulatory body to provide any Confidential Information received under this Agreement, then the Recipient will not be deemed to be in violation of this Agreement for the disclosure if the Recipient promptly gives written notice to the Company of the requirement to provide the Confidential Information and cooperates with the Company so that the Company may contest the requirement to provide the Confidential Information. The Recipient may disclose only that portion of the Confidential Information that it is legally required to furnish.
7. Term of Confidentiality Period
A little different from the previous sections, this provision outlines the term, or lifespan, of the NDA. The NDA might be drawn up for a singular transaction lasting a week, or it might be drafted for an indefinite duration. The term is selected to reflect the anticipated time frame of the relationship, meaning the agreement stays active till then. It's quite common for an NDA to outlive the transaction or relationship it's put in place for, and extend as long as the trade secret is under wraps.
More often than not, you might want to specify that the trade secret continues to be defended even if, say, a business relationship or another contractual agreement has concluded. If you're floundering about what to plug in here, most NDAs range between one to five years. Ensure that the chosen time frame covers your need to have the information remain confidential.
This Agreement will continue for a period of one year from the Effective Date unless: (1) terminated earlier by either party upon written notice to the other; (2) extended by the mutual written agreement of the parties; or (3) superseded by a subsequent written agreement that explicitly sets forth the obligations of the parties with respect to Confidential Information. With respect to business information, the Recipient’s obligations of confidentiality and non-use under this Agreement will expire three years from the termination of this Agreement. With respect to all information that constitutes a trade secret, the Recipient’s obligations of confidentiality and non-use under this Agreement will survive the termination of this Agreement for as long as such information remains a trade secret under applicable law.
What happens if I've already disclosed confidential information?
Perhaps you've already disclosed trusted information to the other party inadvertently—don't worry! All is not lost. You can adjust the template to reflect this already-occurred disclosure. We'll share some tips on how to do that.
How do I protect my trade secret?
We all use NDAs for the same reason — protect our confidential information. But remember, confidential information alone does not hold any value. It becomes worthy only when it counts as a trade secret.
Imagine your family's coveted chocolate chip cookie recipe. It's a confidential family secret, but it becomes a trade secret only when you open a bakery, and those cookies make you famous. If you're a tad unsure of what a trade secret is, or if your information qualifies as a trade secret, or how to adequately protect your trade secret, look through our guide on the subject. We’ve got your back!