NDA Vs. Confidentiality Agreement: Same Or Different? (2026)
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Reviewed By Adam Ramirez, J.D.
Editor
Summary
- Non-disclosure agreements prevent parties from spreading information
- Confidentiality agreements require parties to keep information confidential
- Using an NDA vs. confidentiality agreement depends on the parties’ intent
Non-disclosure agreements (NDAs) and confidentiality agreements are both designed to help individuals and businesses protect information. While both kinds of documents serve the same ultimate purpose, there are several reasons why a company or an individual may choose to use one over the other.
What Is a Non-Disclosure Agreement (NDA)?
What is an NDA? An NDA is a document that creates a contractual obligation between parties, preventing them from disclosing specific kinds of information that are outlined in the agreement.
What Is a Confidentiality Agreement?
Similar to an NDA, a confidentiality agreement obligates a party to keep the information described in the agreement confidential. This may go beyond an obligation not to share the information and may actually limit a party’s ability to use or act on the specified information. Confidential information can include any details the parties wish to protect.
Key Similarities Between NDAs and Confidentiality Agreements
The definitions of an NDA vs. confidentiality agreement overlap considerably. In fact, many lawyers use these terms interchangeably.
Both types of agreements require someone to refrain from spreading information. Parties are usually prohibited from disclosing facts, while they remain free to express opinions. A breach of either type of agreement is usually remedied through a lawsuit seeking economic damages and an injunction against further disclosures.
Key Differences Between NDAs and Confidentiality Agreements
Even though these agreements overlap, subtle differences may arise between an NDA vs. confidentiality agreement based on the parties’ intent.
Non-disclosure agreements usually prohibit “disclosures” of the information, but a confidentiality agreement may also prohibit the use of the information. For example, a company might use a confidentiality agreement to disclose its marketing plans to a competitor during merger negotiations. If the merger falls through, the competitor would be prohibited from using those plans.
Another possible difference is that an NDA might only prohibit dissemination, while a confidentiality agreement might also obligate the parties to protect the information received. Thus, a party might breach the terms of a confidentiality agreement if they treat the other party’s information so carelessly that it is uncovered, even though they did not actively spread it.
When to Use an NDA vs. a Confidentiality Agreement
Calling an agreement an NDA or confidentiality agreement is up to the parties. The more important consideration is what terms to include in the NDA or confidentiality agreement.
If the information disclosed is a trade secret, the contract should obligate the receiving party to reasonably protect the information or destroy it after fulfilling the contract. Most states, such as California, only grant trade secret protection if the owner took reasonable measures to protect its secrecy.
Additionally, if the receiving party's use of the information could harm the disclosing party, the contract terms should include additional restrictions to prevent misuse. For example, a product designer might prohibit a factory from developing improved products based on confidential product designs.
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NDA Vs. Confidentiality Agreement: Same Or Different? (2026)
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Frequently Asked Questions
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You do not need a confidentiality agreement with your lawyer. Lawyers are automatically obligated to maintain the confidentiality of any information learned from you.
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Some lawsuit settlements will incorporate non-disclosure or confidentiality clauses. If the party is simply worried about the disclosure of sensitive or embarrassing information, it may use an NDA. If the information may be used against the party, it may use a confidentiality clause.
