NDA vs Confidentiality Agreement: Are They the Same?
The short answer: NDA and confidentiality agreement are essentially the same thing. "NDA" (Non-Disclosure Agreement) is just the more commonly used name for what lawyers might formally call a "confidentiality agreement."
Why Different Names?
The terms are used interchangeably in practice:
- NDA (Non-Disclosure Agreement): More casual, commonly used in business
- Confidentiality Agreement: More formal legal terminology
- Proprietary Information Agreement (PIA): Common in tech companies
- Confidential Disclosure Agreement (CDA): Common in pharma/biotech
What They All Do
Regardless of name, these agreements:
- Define what information is considered confidential
- Require the recipient to keep that information secret
- Restrict how the information can be used
- Specify how long confidentiality obligations last
- Detail exceptions (public information, prior knowledge, etc.)
Types of NDAs/Confidentiality Agreements
Unilateral (One-Way) NDA
One party discloses information, the other agrees to keep it confidential. Common in:
- Employment (you receive company secrets)
- Vendor evaluations (vendor shows you their product)
- Investment discussions (startup shows financials)
Mutual (Two-Way) NDA
Both parties share and protect each other's information. Common in:
- Potential partnerships
- Joint ventures
- Merger discussions
- Business collaborations
Key Terms to Review
Definition of Confidential Information
This is the most important section. Watch for:
- Overly broad definitions: "Any information disclosed" could cover everything
- Marking requirements: Does information need to be labeled "confidential"?
- Oral disclosures: How are verbal communications handled?
Exclusions
Standard exclusions protect you from impossible obligations:
- Information already publicly known
- Information you already knew
- Information received from third parties
- Information independently developed
- Information required by law to disclose
Duration
How long must you keep information confidential?
- 1-3 years: Common for business discussions
- 5 years: Common for technical information
- Perpetual: Until information becomes public (common for trade secrets)
Employment NDAs vs Standalone NDAs
Employment NDAs
- Signed as part of employment
- Often combined with IP assignment clauses
- May include non-compete provisions
- Obligations typically survive termination
Standalone NDAs
- Signed before specific business discussions
- More narrowly focused
- Usually pure confidentiality without other restrictions
- Often mutual
Red Flags to Watch For
- No exclusions for public information
- Perpetual obligations for non-trade-secret information
- Requirements to return "all copies" (impossible with digital info)
- One-sided obligations in what should be a mutual agreement
- Hidden non-compete language
Frequently Asked Questions
Is an NDA the same as a confidentiality agreement?
Yes, NDA (Non-Disclosure Agreement) and confidentiality agreement are essentially the same thing—they both protect confidential information from being disclosed. NDA is simply the more commonly used term in business settings.
What's the difference between unilateral and mutual NDAs?
A unilateral (one-way) NDA means only one party is sharing confidential information. A mutual (two-way) NDA means both parties are sharing and protecting each other's confidential information. Mutual NDAs are common in partnership discussions.
How long does an NDA last?
NDA duration varies. Business discussion NDAs often last 1-3 years. Technical information NDAs may last 5 years. Trade secret NDAs often last until the information becomes public, which could be perpetual.
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