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Hawaii Non-Disclosure Agreement Requirements

Outside the technology industry, Hawaii has no general noncompete statute at all; restrictive covenants for other industries are instead tested for reasonableness under Hawaii common law, following Technicolor, Inc.

Introduction

Outside the technology industry, Hawaii has no general noncompete statute at all; restrictive covenants for other industries are instead tested for reasonableness under Hawaii common law, following Technicolor, Inc. v. Traeger (1976). Since 2015, HRS Section 480-4(d) voids any noncompete clause or nonsolicit clause in an employment contract for an employee of a technology business, defined as a business that draws the majority of its income from software or information technology development; the statute still allows a reasonable covenant against using the employer's trade secrets, preserved separately in Section 480-4(c)(4). A Non-Disclosure Agreement in Hawaii is a contract in which one or both parties agree to keep specified information confidential, and it can be mutual or one-way. Trade secrets themselves are protected separately under the Hawaii Uniform Trade Secrets Act (HRS Chapter 482B), and a misappropriation claim generally must be filed within three years of when the misappropriation was discovered or reasonably should have been discovered. The practical effect for drafting: if the party receiving confidential information is a technology-business employee, keep the confidentiality definition from functioning as a disguised noncompete, since Section 480-4(d) voids that kind of clause regardless of the employer's intent.

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Key Things to Know

  1. 1

    Hawaii has no employee invention-assignment carve-out statute, unlike California, Delaware, Illinois, and several other states. An NDA or employment agreement that addresses assigning inventions in Hawaii is governed by its own contract terms rather than a statutory floor protecting inventions made on the employee's own time.

  2. 2

    Hawaii's HRS Section 480-4(d) voids any noncompete clause or nonsolicit clause in an employment contract for an employee of a technology business, a business deriving the majority of its income from software or information technology development, a narrower rule than most states' broader noncompete restrictions. The statute still allows a reasonable covenant against using the employer's trade secrets under Section 480-4(c)(4).

  3. 3

    Outside the technology-business context, Hawaii has no general noncompete statute. A restrictive covenant embedded in an NDA for another industry is reviewed under Hawaii's common-law reasonableness test, following Technicolor, Inc. v. Traeger, 57 Haw. 113, 551 P.2d 163 (1976).

  4. 4

    Trade secret protection runs separately through the Hawaii Uniform Trade Secrets Act (HRS Chapter 482B), regardless of what the NDA itself says.

  5. 5

    A trade secret misappropriation claim in Hawaii generally must be filed within three years of when the misappropriation was discovered or reasonably should have been discovered (HRS Section 482B-7); a continuing misappropriation counts as a single claim.

  6. 6

    Mutual NDAs, where both sides share confidential information, and one-way NDAs, where only one side does, are both ordinary enforceable contracts in Hawaii; which one fits depends on whether the exchange runs both directions or one direction.

  7. 7

    A Hawaii court can order injunctive relief to stop an ongoing or threatened breach of a valid NDA, in addition to any damages the disclosure caused, and the Hawaii Uniform Trade Secrets Act provides an independent injunctive remedy when the disclosed information is a trade secret.

Key decisions before you file

Before you file a Non-Disclosure Agreement in Hawaii, a few decisions shape the document: which option to choose and what each one means. The Non-Disclosure Agreement guide walks through them.

Open the Non-Disclosure Agreement guide

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HAWAII NON-DISCLOSURE AGREEMENT

[Party A Name], located in [City], Hawaii, and [Party B Name], located in [City], Hawaii (together, the "Parties," each a "Party"), sign this Non-Disclosure Agreement under the terms below.

  1. Purpose. For [describe business purpose, e.g. exploring a potential business relationship], the Parties anticipate that one or both of them will need to share Confidential Information with the other.

  2. Definition of Confidential Information. "Confidential Information" means business, technical, or financial information one Party discloses to the other and marks confidential, or that the circumstances would lead a reasonable recipient to treat as confidential, including any trade secret as HRS Chapter 482B, the Hawaii Uniform Trade Secrets Act, defines it: information deriving economic value from not being generally known or readily discoverable, protected by reasonable efforts to keep it secret. It excludes information already in the receiving Party's files before disclosure, information a third party lawfully shares without a confidentiality duty attached, information the receiving Party develops independently, and information that becomes public through no fault of the receiving Party.

  3. Obligations. The receiving Party must limit its use of Confidential Information to the purpose in Section 1, protect it with reasonable care, and withhold it from third parties absent the disclosing Party's prior written consent, except personnel and advisors who need it for that purpose and are themselves bound to confidentiality terms no weaker than this Agreement's.

  4. Scope Limitation (Hawaii-Specific). HRS Section 480-4(d) voids any noncompete or nonsolicit clause in an employment contract for a technology-business employee, a business earning most of its gross income from software or information technology development, and this Agreement's confidentiality terms cannot function as one merely because they are worded differently. Section 480-4(c)(4) preserves a narrower covenant against using the employer's trade secrets in competition, for a reasonable time and without undue hardship on the employee, and that narrower covenant is the outer limit of this Agreement's confidentiality obligations whenever the receiving Party works for a technology business. Outside that context, Hawaii has no general noncompete statute, so any restrictive covenant here stands or falls under the common-law reasonableness test from Technicolor, Inc. v. Traeger, 57 Haw. 113, 551 P.2d 163 (1976).

  5. Federal Whistleblower Notice. The Defend Trade Secrets Act, 18 U.S.C. Section 1833(b), immunizes an individual from criminal and civil liability for sharing a trade secret in confidence with a government official or attorney solely to report a suspected violation of law, or in a sealed court filing. Congress conditioned full access to the Act's remedies on giving that notice, which is why it appears here.

  6. Term. Confidentiality runs for [X years] starting on the date the Parties sign this Agreement. That clock does not apply to anything meeting the Hawaii Uniform Trade Secrets Act's definition of a trade secret, which stays protected under this Agreement for as long as it keeps that status.

  7. Return or Destruction. When the disclosing Party requests it, or when the relationship described in Section 1 winds down, whichever happens first, the receiving Party must return or destroy every copy of the Confidential Information still in its possession.

  8. Remedies. Money damages often understate a leak's real cost, so where the leaked information is a trade secret, HRS Section 482B-3 lets the non-breaching Party seek an injunction against actual or threatened misappropriation, along with damages, unjust enrichment recovery, and attorney's fees under the Hawaii Uniform Trade Secrets Act. For a breach short of trade secret misappropriation, ordinary Hawaii contract remedies, including injunctive relief and damages, still apply.

  9. Governing Law. Hawaii law governs this Agreement and its interpretation, without regard to Hawaii's conflict of laws rules, since both Parties are grounding this relationship in the state where the technology-business noncompete limits of Section 4 actually apply.

  10. Miscellaneous. An electronically delivered signature counts as valid here, recognized under Hawaii's Uniform Electronic Transactions Act (HRS Chapter 489E) and the federal ESIGN Act (15 U.S.C. Section 7001). If a court strikes down any single provision, the rest of this Agreement keeps operating normally. The commitments each Party makes to the other serve as the consideration that makes this a binding contract.

[Party A Signature] ____________________ Date: __________ [Party B Signature] ____________________ Date: __________

Hawaii Requirements for Non-Disclosure Agreement

Definition of Confidential Information (Hawaii Uniform Trade Secrets Act, HRS Section 482B-2)

Clearly defines what constitutes confidential information and a trade secret under Hawaii law. The definitions are set out in HRS Section 482B-2, not Section 482B-1, which is only the chapter's short title. A trade secret means information that derives independent economic value from not being generally known or readily ascertainable by others who could profit from it, and that is the subject of reasonable efforts to maintain its secrecy.

Trade Secret Protection (Hawaii Uniform Trade Secrets Act, HRS Section 482B-2 through Section 482B-9)

Addresses the specific requirements for trade secret protection under Hawaii law, including injunctive relief, damages, attorney's fees, preservation of secrecy, and the statute of limitations, in accordance with Hawaii's adoption of the Uniform Trade Secrets Act.

Restrictive Covenant Limitations (Hawaii Revised Statutes Section 480-4(d))

Confirms the confidentiality obligations in this Agreement do not function as an unenforceable restraint on future employment. Since 2015, Section 480-4(d) voids any noncompete clause or nonsolicit clause in an employment contract for an employee of a technology business, a business deriving the majority of its income from software or information technology development, while still permitting a reasonable covenant against using the employer's trade secrets under Section 480-4(c)(4). Outside the technology-business context, Hawaii has no general noncompete statute; a restrictive covenant elsewhere is instead tested for reasonableness under Hawaii common law, following Technicolor, Inc. v. Traeger, 57 Haw. 113, 551 P.2d 163 (1976). Ordinary NDA term length is addressed as a plain contract provision in documentText, not a distinct statutory requirement.

Exclusions from Confidential Information (Hawaii Uniform Trade Secrets Act, HRS Section 482B-2)

Identifies information not considered confidential under Hawaii law, including publicly available information and information independently developed, consistent with the statutory trade secret definition's requirement that protected information not be generally known or readily ascertainable.

Return or Destruction of Confidential Information (Hawaii common law on confidentiality agreements)

Requirements for the return or destruction of confidential information upon termination of the agreement or business relationship, an ordinary contract obligation under Hawaii law.

Defend Trade Secrets Act Compliance (Defend Trade Secrets Act of 2016, 18 U.S.C. Section 1833(b))

Includes the required notice that an individual may not be held liable for disclosing a trade secret in confidence to a government official or attorney to report a suspected violation of law, or in a sealed court filing, as required to preserve the disclosing party's remedies under the Defend Trade Secrets Act.

Remedies for Breach (Hawaii Rules of Civil Procedure, Rule 65; HRS Section 482B-3)

Outlines available remedies for breach of the NDA, including injunctive relief. HRS Section 482B-3 governs injunctive relief for trade secret misappropriation and its own official annotation cross-references Hawaii Rules of Civil Procedure Rule 65.

Electronic Signatures (Hawaii Uniform Electronic Transactions Act, HRS Section 489E-1 et seq.)

Acknowledges the validity of electronic signatures under Hawaii's Uniform Electronic Transactions Act.

Severability (Hawaii contract common law)

Ensures that if any provision is found unenforceable under Hawaii law, the remainder of the agreement remains valid.

Non-Waiver (Hawaii contract common law)

Establishes that failure to enforce any provision does not constitute waiver of rights under Hawaii contract law.

Whistleblower Protection (Hawaii Whistleblowers' Protection Act, HRS Section 378-61 et seq.; Defend Trade Secrets Act, 18 U.S.C. Section 1833(b))

Two distinct protections. HRS Section 378-61 et seq. is Hawaii's general employee whistleblower statute, barring an employer from discharging, threatening, or discriminating against an employee for reporting a suspected violation of law to a public body, a broader anti-retaliation protection not limited to trade secrets. Separately, 18 U.S.C. Section 1833(b) is the narrower federal notice that an individual may not be held liable for disclosing a trade secret in confidence to report a suspected violation of law, required to preserve the disclosing party's DTSA remedies. Both are legitimate but address different scopes of protection.

Economic Espionage Act Compliance (Economic Espionage Act of 1996, 18 U.S.C. Section 1831 through Section 1839)

Acknowledges federal protections against economic espionage and theft of trade secrets, including criminal penalties.

Disclosure Required by Law (Hawaii Rules of Civil Procedure; Hawaii Rules of Evidence)

Procedures for handling confidential information when disclosure is required by law, court order, or governmental authority under Hawaii's civil procedure and evidence rules.

Consideration (Hawaii contract common law)

Explicitly states the consideration provided in exchange for confidentiality obligations, as required for valid contracts under Hawaii law.

Dispute Resolution (Hawaii Revised Statutes Chapter 658A, Uniform Arbitration Act)

Establishes procedures for resolving disputes, potentially including mediation or arbitration, in accordance with Hawaii's Uniform Arbitration Act.

Entire Agreement (Hawaii contract common law)

Confirms that the NDA constitutes the entire agreement between parties regarding confidentiality, superseding prior agreements, in accordance with Hawaii contract law.

Frequently Asked Questions

A Non-Disclosure Agreement in Hawaii is an ordinary contract in which one or both parties agree to keep specified information confidential. It can be mutual, where both sides share confidential information, or one-way, where only one side does. Trade secrets shared under the agreement are also separately protected by the Hawaii Uniform Trade Secrets Act (HRS Chapter 482B) regardless of what the NDA itself says.

It depends on the industry. If the person bound by the NDA is an employee of a technology business, HRS Section 480-4(d) voids any noncompete clause or nonsolicit clause in that employment contract outright, regardless of the parties' intent. Outside the technology-business context, Hawaii has no statute banning noncompetes; a restrictive covenant is instead enforceable if it passes Hawaii's common-law reasonableness test, following Technicolor, Inc. v. Traeger (1976).

No. HRS Section 480-4(d) applies specifically to an employment contract relating to an employee of a technology business, defined as a business that derives the majority of its gross income from software development or information technology development. An NDA between two companies, or one used outside an employment relationship, is not covered by that specific provision, though an overbroad restraint could still face review under Hawaii's general prohibition on contracts in restraint of trade.

A trade secret misappropriation claim under the Hawaii Uniform Trade Secrets Act generally must be brought within three years after the misappropriation is discovered, or after it reasonably should have been discovered with reasonable diligence (HRS Section 482B-7). A continuing misappropriation is treated as a single claim for this purpose. A separate breach-of-contract claim over the NDA itself follows Hawaii's ordinary written-contract limitations period.

Not automatically limited by any Hawaii statute. Unlike California, Delaware, Illinois, Kansas, Minnesota, North Carolina, Utah, and Washington, Hawaii has no employee invention-assignment carve-out law. Whatever an NDA or employment agreement in Hawaii actually says about assigning inventions is what governs, without a statutory floor protecting inventions the employee made on their own time and without company resources.

It depends on whether confidential information will flow in both directions or only one. A mutual NDA fits a two-way exchange, such as a merger, partnership, or joint-venture discussion where both sides disclose sensitive information. A one-way NDA fits a one-directional exchange, such as pitching a business plan to an investor who is not sharing anything confidential back. Both forms are equally enforceable in Hawaii; the choice is about which structure matches the actual relationship.

No. A Hawaii NDA is an ordinary contract, not a formal instrument like a will or power of attorney, so it does not require notarization or witnesses to be valid. It only needs the standard elements of a valid contract: an offer, acceptance, and consideration, along with signatures from the parties being bound.

The non-breaching party can seek injunctive relief to stop an ongoing or threatened disclosure, along with damages caused by the breach. If the disclosed information also qualifies as a trade secret, the Hawaii Uniform Trade Secrets Act provides an additional, independent basis for relief, including damages for actual loss and unjust enrichment, separate from whatever remedies the NDA itself specifies.