Is this agreement a one-way or two-way confidentiality agreement?

In a one-way (or “unilateral”) confidentiality agreement, only one party is disclosing information. If it’s two-way (or “bilateral,” “reciprocal,” or “mutual”), both parties are.

Even if both parties are disclosing information, a two-way agreement makes sense only if the rights and obligations of the parties are broadly reciprocal. It would be awkward to put into one contract two very different arrangements for confidentiality; you might want to use instead two separate contracts.

Consistent with that, Koncision’s two-way confidentiality agreement provides for reciprocal rights and obligations, with many of the provisions pertaining to “the Disclosing Party” and “the Recipient,” whichever party that happens to be.

Commentators suggest that with a two-way agreement, it’s less likely that one of the parties will try to overreach, given that the other party, too, will have the benefit of any unduly favorable provisions. But that assumes a symmetry that may not be the case. For one thing, more often than not one of the parties is disclosing much more information than the other. And one party may have more at stake than the other with respect to a given provision. So just because a confidentiality agreement is two-way isn’t a reason to let down your guard.

Feedback