NDAs and confidentiality agreements: same thing, different label?

The labels are used loosely

In everyday deal practice, NDA and confidentiality agreement are often used interchangeably. Some advisers use NDA for a short, simple document and confidentiality agreement for a longer one with more detailed obligations. Others use whichever term their firm's template happens to carry. You will also see one-way documents, where only one side is sharing, called confidentiality undertakings or letters.

Because the names overlap so much, the title tells you very little. What matters is what the document actually says: who is bound, what information is covered, what the recipient may do with it, and for how long. Two documents with the same title can say very different things, and two with different titles can be almost identical.

Terms worth reading closely

Whatever the document is called, these are the provisions that usually decide how useful it is. They are prompts for a conversation with your lawyer, not a drafting checklist.

• Definition of confidential information. Is it everything disclosed, or only material marked confidential? Does it include the fact that talks are taking place?
• Permitted purpose. Is use limited to evaluating the transaction, or drafted more widely?
• Permitted recipients. Can the counterparty share with its advisers, financiers and group companies, and are they required to bind those people too?
• Duration. How long do the obligations last, and do some categories, such as trade secrets, last longer?
• Return or destruction. What must happen to documents and copies when talks end, and what may be kept for legal or regulatory reasons?
• Non-solicitation. Some agreements stop the recipient approaching your staff or customers for a period.
• Remedies and governing law. What happens if the agreement is broken, and which law and forum apply?
• Personal data. If the documents contain personal data, how the recipient must handle it alongside its own obligations under the PDPA.

Asking for acceptance at the door

Signed agreements usually cover the counterparty as an organisation. In a busy process, though, the individuals who actually read the documents change: a new analyst joins, an external accountant is brought in. Many sellers like each person to acknowledge confidentiality terms personally before they see anything.

ShareAndGo can ask every visitor to accept your confidentiality terms before a room opens, and keeps a record of who accepted and when. That acceptance is a step in your process, not a substitute for the agreement your lawyer prepares. It simply means nobody reaches the documents without first being shown the terms you set.