Free Hawaii Non-Disclosure Agreement

Sample Hawaii Non-Disclosure Agreement

NON-DISCLOSURE AGREEMENT

THIS NON-DISCLOSURE AGREEMENT (the "Agreement") dated this ____________________, _______.

BETWEEN:

____________________ of ________________________________________________________________________________

(the "Employer")

OF THE FIRST PART

- AND -


____________________ of ________________________________________________________________________________

(the "Employee")

OF THE SECOND PART

BACKGROUND:

  1. The Employee is currently or may be employed as an employee with the Employer for the position of: ____________________. In addition to this responsibility or position (the "Employment"), this Agreement also covers any position or responsibility now or later held with the Employer.
  2. The Employee will receive from the Employer, or develop on the behalf of the Employer, Confidential Information as a result of the Employment (the 'Permitted Purpose').

IN CONSIDERATION OF and as a condition of the Employer employing the Employee and the Employer providing the Confidential Information to the Employee in addition to other valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, the parties to this Agreement agree as follows:

    Confidential Information

  1. All written and oral information and materials disclosed or provided by the Employer to the Employee under this Agreement constitute Confidential Information regardless of whether such information was provided before or after the date of this Agreement or how it was provided to the Employee.
  2. The Employee acknowledges that in any position the Employee may hold, in and as a result of the Employee's Employment by the Employer, the Employee will, or may, be making use of, acquiring or adding to information about certain matters and things which are confidential to the Employer and which information is the exclusive property of the Employer.
  3. 'Confidential Information' means all data and information relating to the business and management of the Employer, including but not limited to, the following:
    1. Confidential Information will also include any information that has been disclosed by a third party to the Employer and is protected by a non-disclosure agreement entered into between the third party and the Employer.
  4. Confidential Information will not include the following information:
    1. Information that is generally known in the industry of the Employer;
    2. Information that is now or subsequently becomes generally available to the public through no wrongful act of the Employee;
    3. Information rightly in the possession of the Employee prior to receiving the Confidential Information from the Employer;
    4. Information that is independently created by the Employee without direct or indirect use of the Confidential Information; or
    5. Information that the Employee rightfully obtains from a third party who has the right to transfer or disclose it.
  5. Confidential Obligations

  6. Except as otherwise provided in this Agreement, the Employee must keep the Confidential Information confidential.
  7. Except as otherwise provided in this Agreement, the Confidential Information will remain the exclusive property of the Employer and will only be used by the Employee for the Permitted Purpose. The Employee will not use the Confidential Information for any purpose that might be directly or indirectly detrimental to the Employer or any associated affiliates or subsidiaries.
  8. The obligations to ensure and protect the confidentiality of the Confidential Information imposed on the Employee in this Agreement and any obligations to provide notice under this Agreement will survive the expiration or termination, as the case may be, of this Agreement and will be continuous from the date of this Agreement until ____________________, _______, except in the case of any Confidential Information which is a trade secret in which case those obligations will last indefinitely.
  9. The Employee may disclose any of the Confidential Information:
    1. to such employees, agents, representatives and advisors of the Employee that have a need to know for the Permitted Purpose provided that:
      1. the Employee has informed such personnel of the confidential nature of the Confidential Information;
      2. such personnel agree to be legally bound to the same burdens of confidentiality and non-use as the Employee;
      3. the Employee agrees to take all necessary steps to ensure that the terms of this Agreement are not violated by such personnel; and
      4. the Employee agrees to be responsible for and indemnify the Employer for any breach of this Agreement by their personnel.
    2. to a third party where the Employer has consented in writing to such disclosure; and
    3. to the extent required by law or by the request or requirement of any judicial, legislative, administrative or other governmental body.
  10. Avoiding Conflict of Opportunities

  11. It is understood and agreed that any business opportunity relating to or similar to the Employer's current or anticipated business opportunities coming to the attention of the Employee during the Employee's Employment is an opportunity belonging to the Employer. Accordingly, the Employee will advise the Employer of the opportunity and cannot pursue the opportunity, directly or indirectly, without the written consent of the Employer.
  12. Without the written consent of the Employer, the Employee further agrees not to:
    1. solely or jointly with others undertake or join any planning for or organization of any business activity competitive with the current or anticipated business activities of the Employer; and
    2. directly or indirectly, engage or participate in any other business activities which the Employer, in their reasonable discretion, determines to be in conflict with the best interests of the Employer.
  13. Non-Solicitation

  14. Any attempt on the part of the Employee to induce others to leave the Employer's employ, or any effort by the Employee to interfere with the Employer's relationship with their other employees and contractors would be harmful and damaging to the Employer. The Employee agrees that from the date of this Agreement until ____________________, _______, the Employee will not in any way, directly or indirectly:
    1. induce or attempt to induce any employee or contractor of the Employer to quit their employment or retainer with the Employer;
    2. otherwise interfere with or disrupt the Employer's relationship with their employees and contractors;
    3. discuss employment opportunities or provide information about competitive employment to any of the Employer's employees or contractors; or
    4. solicit, entice, or hire away any employee or contractor of the Employer.

    This obligation will be limited in scope to those persons that were employees or contractors of the Employer at the same time that the Employee was employed by the Employer.

  15. Non-Competition

  16. Other than through employment with a bona-fide independent party, or with the express written consent of the Employer, which will not be unreasonably withheld, the Employee will not, from the date of this Agreement until ____________________, _______, be directly or indirectly involved with a business which is in direct competition with the particular business line of the Employer that the Employee was working during any time in the last year of Employment with the Employer.
  17. From the date of this Agreement until ____________________, _______, the Employee will not divert or attempt to divert from the Employer any business the Employer had enjoyed, solicited, or attempted to solicit, from their customers, prior to termination or expiration, as the case may be, of the Employment.
  18. Ownership and Title

  19. The Employee acknowledges and agrees that all rights, title and interest in any Confidential Information will remain the exclusive property of the Employer. Accordingly, the Employee specifically agrees and acknowledges that the Employee will have no interest in the Confidential Information, including, without limitation, no interest in know-how, copyright, trademarks or trade names, notwithstanding the fact that the Employee may have created or contributed to the creation of that Confidential Information.
  20. The Employee does hereby waive any moral rights that the Employee may have with respect to the Confidential Information.
  21. The Confidential Information will not include anything developed or produced by the Employee during the term of this Agreement, including but not limited to intellectual property, process, design, development, creation, research, invention, know-how, trade name, trademarks or copyright that:
    1. was developed without the use of any equipment, supplies, facility or Confidential Information of the Employer;
    2. was developed entirely on the Employee's own time;
    3. does not relate to the actual business or reasonably anticipated business of the Employer;
    4. does not relate to the actual or demonstrably anticipated processes, research or development of the Employer; and
    5. does not result from any work performed by the Employee for the Employer.
  22. The Employee agrees to immediately disclose to the Employer all Confidential Information developed in whole or in part by the Employee during the term of the Employment and to assign to the Employer any right, title or interest the Employee may have in the Confidential Information. The Employee agrees to execute any instruments and to do all other things reasonably requested by the Employer (both during and after the term of the Employment) in order to vest more fully in the Employer all ownership rights in those items transferred by the Employee to the Employer.
  23. Remedies

  24. The Employee agrees and acknowledges that the Confidential Information is of a proprietary and confidential nature and that any failure to maintain the confidentiality of the Confidential Information in breach of this Agreement cannot be reasonably or adequately compensated for in money damages and would cause irreparable injury to the Employer. Accordingly, the Employee agrees that the Employer is entitled to, in addition to all other rights and remedies available to them at law or in equity, an injunction restraining the Employee and any agents of the Employee, from directly or indirectly committing or engaging in any act restricted by this Agreement in relation to the Confidential Information.
  25. Return of Confidential Information

  26. The Employee agrees that, upon request of the Employer, or in the event that the Employee ceases to require use of the Confidential Information, or upon expiration or termination of this Agreement, or the expiration or termination of the Employment, the Employee will turn over to the Employer all documents, disks or other computer media, or other material in the possession or control of the Employee that:
    1. may contain or be derived from ideas, concepts, creations, or trade secrets and other proprietary and Confidential Information as defined in this Agreement; or
    2. is connected with or derived from the Employee's services to the Employer.
  27. Notices

  28. In the event that the Employee is required in a civil, criminal or regulatory proceeding to disclose any part of the Confidential Information, the Employee will give to the Employer prompt written notice of such request so the Employer may seek an appropriate remedy or alternatively to waive the Employee's compliance with the provisions of this Agreement in regards to the request.
  29. If the Employee loses or fails to maintain the confidentiality of any of the Confidential Information in breach of this Agreement, the Employee will immediately notify the Employer and take all reasonable steps necessary to retrieve the lost or improperly disclosed Confidential Information.
  30. Any notices or delivery required in this Agreement will be deemed completed when hand-delivered, delivered by agent, or seven (7) days after being placed in the post, postage prepaid, to the parties at the addresses contained in this Agreement or as the parties may later designate in writing.
  31. The addresses for any notice to be delivered to any of the parties to this Agreement are as follows:
    1. ____________________
      ________________________________________________________________________________
    2. ____________________
      ________________________________________________________________________________
  32. Representations

  33. In providing the Confidential Information, the Employer makes no representations, either expressly or impliedly as to its adequacy, sufficiency, completeness, correctness or its lack of defect of any kind, including any patent or trademark infringement that may result from the use of such information.
  34. Termination

  35. This Agreement will automatically terminate on the date that the Employee's Employment with the Employer terminates or expires, as the case may be. Except as otherwise provided in this Agreement, all rights and obligations under this Agreement will terminate at that time.
  36. Assignment

  37. Except where a party has changed its corporate name or merged with another corporation, this Agreement may not be assigned or otherwise transferred by either party in whole or part without the prior written consent of the other party to this Agreement.
  38. Amendments

  39. This Agreement may only be amended or modified by a written instrument executed by both the Employer and the Employee.
  40. Governing Law

  41. This Agreement will be construed in accordance with and governed by the laws of the State of Hawaii.
  42. General Provisions

  43. Time is of the essence in this Agreement.
  44. This Agreement may be executed in counterpart.
  45. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.
  46. The clauses, paragraphs, and subparagraphs contained in this Agreement are intended to be read and construed independently of each other. If any part of this Agreement is held to be invalid, this invalidity will not affect the operation of any other part of this Agreement.
  47. The Employee is liable for all costs, expenses and expenditures including, and without limitation, the complete legal costs incurred by the Employer in enforcing this Agreement as a result of any default of this Agreement by the Employee.
  48. The Employer and the Employee acknowledge that this Agreement is reasonable, valid and enforceable. However, if a court of competent jurisdiction finds any of the provisions of this Agreement to be too broad to be enforceable, it is the intention of the Employer and the Employee that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable, bearing in mind that it is the intention of the Employee to give the Employer the broadest possible protection to maintain the confidentiality of the Confidential Information.
  49. No failure or delay by the Employer in exercising any power, right or privilege provided in this Agreement will operate as a waiver, nor will any single or partial exercise of such rights, powers or privileges preclude any further exercise of them or the exercise of any other right, power or privilege provided in this Agreement.
  50. This Agreement will inure to the benefit of and be binding upon the respective heirs, executors, administrators, successors and assigns, as the case may be, of the Employer and the Employee.
  51. This Agreement constitutes the entire agreement between the parties and there are no further items or provisions, either oral or otherwise.

IN WITNESS WHEREOF ____________________ and ____________________ have duly affixed their signatures under hand and seal on this ____________________, _______.

     

Witness(Sign):________________________________

 

____________________________________

Witness Name: ____________________________

 

____________________________(Employer)


     

Witness(Sign):________________________________

 

_______________________________________

Witness Name: ____________________________

 

____________________________(Employee)



How to Create a Non-Disclosure Agreement in Hawaii

A confidentiality agreement in Hawaii is also called a non-disclosure agreement (NDA), and it refers to the document used to protect proprietary information or trade secrets maintaining your company's competitive advantage in the process. With an NDA, you will be able to protect your intellectual property and other types of details that fall in the trade secrets category.

In case you are wondering, trade secrets refer to confidential information which could be a method, device, program, compilation, technique, or process which gives you an active or a potential economic advantage because the information is unknown to others. So, if the information gets out, you will lose your competitive advantage. It could also be regarded as the information that forms the subject of the efforts set in place to maintain its secrecy.

Upon signing of an NDA, the issues that surround the privacy of the signing party will be protected. The document is deemed valid and enforceable as long as it meets the requirements of Hawaii's revised statutes outlined in Title 26.482B of the state's Trade Secrets Act.

What is confidential information?

The confidential information represents any data or information deemed proprietary to the party that discloses the information. This information is generally unknown to the public, and it is present in a tangible or intangible form.

However, confidential information is not information that was known by the receiving party before receiving and signing the NDA. Also, confidential information is not information that is known to the receiving party from another source like a third party, information that is publicly available, or even information that is required during an administrative or a judicial proceeding, or information that the party is required to disclose because of any other legal requirement. Lastly, confidential information is not information developed independently by the receiving party.

Types of NDAs

There are two main types of NDAs, the unilateral and the bilateral/ mutual NDAs.

A unilateral NDA refers to the contract where only one party agrees not to disclose specific confidential information to third parties. This is the most common type of NDA, and it is created between employers and employees or companies and independent contractors. On the other hand, you have the bilateral NDA which is created when both parties to the NDA agree to maintain the confidentiality of each other’s trade secrets. Often, the mutual NDAs are signed by two businesses that wish to maintain the confidentiality of their business information, a common occurrence in mergers and takeovers.

The role of an NDA

  • A free non-disclosure agreement in Hawaii is legally binding once the parties to the agreement sign and date the document. Businesses and individuals do this for many reasons. The roles of the NDA include:

    • Protection of patent rights

    • Maintenance of a competitive advantage in business

    • You could use it to stipulate the responsibilities of the parties to your NDA

    • It sets the standards for handling sensitive information

    • It protects business information for companies involved in mergers

    • You need an NDA to establish the groundwork for any legal action.

Creating NDAs in Hawaii

To create an NDA, you first need to download a free Hawaii non-disclosure agreement form. The form comes in a format that is acceptable statewide, and all you have to enter is the information that is specific to your circumstances.

Some of the crucial elements of the NDA include:

The definition of the confidential information is essential for the establishment of the rules or the subject of the contract.

A list of information that is not considered confidential because it is available in the public domain or it was obtained by the receiving party legitimately - for example through reverse engineering. The clause with these details is the exclusions clause.

Obligations of the parties to the agreement whether one party or both parties involved are expected to keep the details of the information a secret. The obligations also stipulate the consequences of a breach of contract as well as the fact that the receiving party must restrict the access of the information to other employees or contractors.

Time frames: this is the duration during which the parties to the NDA are required to keep the information in the NDA a secret.

Lastly, the parties to the NDA should sign and date the NDA to create the confidential and legally binding relationship.

Non-competes

If you wish to protect your trade secrets or confidential information from use or revelation to direct competitors by former employees, you'll have your employees sign reasonable non-compete agreements.

This is a legally binding covenant that forbids your former employees from disclosing trade secrets to your direct competitors or forming companies like yours using the knowledge and skills gained working with you. The document must have a time restriction so that the named employee/ former employee will not breach the contract a few years after working for you.

However, the contents of the document must be deemed reasonable for its enforcement. Among other conditions, the contract should not place a former employee under any undue hardships, and the contents of the document should not be injurious to the public. Also, the contractual arrangement should not reduce competition substantially or result in the creation of a monopoly.

The state requires the presence of consideration. This is; a reward or something of value that the parties get from the relationship. The court accepts an offer of a higher salary or even a promotion or extra benefits as enough consideration for signed non-competes. However, the promise of continued employment or getting a job does not qualify as consideration.

Also, the time and the geographic scopes must be reasonable.

Are you looking for an NDA in Honolulu, Lahaina, Volcano, Kailua, Hilo, Kapolei, Hawi, and Waikoloa Village among other cities in Hawaii? Get started today with our free non-disclosure forms.

Sample

HI Non-Disclosure Agreement

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