NDA Vs. Confidentiality Agreement: Same Or Different? (2026)

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.

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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. The types of prohibited information should be outlined in the agreement.

Typically, the party promises not to disclose the information orally or in writing. They will also agree not to disclose the information publicly or privately. For example, disclosure to a spouse is likely prohibited by most NDAs and confidentiality agreements.

Similarly, these agreements will prohibit both in-person and electronic disclosures. This means the parties usually cannot give the information to a reporter or publish it online.

The restriction will usually include physical documents that contain the information, as well as the information itself. If someone publishes a smoking gun memorandum or describes the information from memory, for instance, that could violate the agreement.

It’s important to note that parties are usually prohibited from disclosing facts, while they remain free to express opinions.

How long does an NDA last? Both NDAs and confidentiality agreements can last indefinitely. However, time limits on these can often be shortened by a court if they are unreasonably restrictive. For example, restrictions on disclosing confidential product designs may be lifted after the products are released.

What happens if you break an NDA or a confidentiality agreement? A breach of either type of agreement is usually remedied through a lawsuit seeking economic damages and an injunction against further disclosures.

There are also similarities in how to write an NDA and a confidentiality agreement. Both agreements should describe the parties, the information covered and what the parties can or cannot do with it. They may also describe when disclosure is permitted, such as when a judge issues a subpoena for the information.

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.

There are also situations when NDAs or confidentiality agreements cannot be used. New York law prohibits NDAs or confidentiality clauses in any “settlement, agreement or other resolution of any claim” involving harassment or discrimination.

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