EXHIBIT 10.20
Confidentiality/Proprietary Information Agreement
Agreement dated this _____ day of ___________, by and between Bion
Environmental Technologies, Inc., a Colorado corporation having a place of
business at XX Xxx 000, Xxx Xxxxxxxx, Xxx Xxxx 00000, and its subsidiaries
(collectively "BION") and __________________, a corporation or entity having
a place of business at ______________________________ (and it's employees and
affiliates) (collectively "Recipient").
WHEREAS, BION is a technology based company which has developed and
possesses pending and granted patent assets and certain confidential
proprietary information, data and experience relating to systems for the
treatment, monitoring, processing and management of environmental parameters
and variables, including waste streams (including without limitation of
animal waste streams for the production of organic soils, humus, fertilizers,
remediated organics and mixtures with other materials) and relationships with
third parties which are considered by BION to be secret and confidential and
to constitute valuable commercial assets.
WHEREAS, BION is willing, subject to the terms and conditions hereof,
and in reliance thereon, to disclose so much of such information, data and
experience to Recipient as may be necessary for the purpose of enabling
Recipient to evaluate said information, data and experience, for use in
projects that Recipient may be evaluating for the application of said
information, data and experience by BION and for no other use or purpose.
NOW, THEREFORE, the parties agree as follows:
1. The term "Confidential Information" as used herein means all
information, data and experience of the type referred to above (and all
portions and aspects thereof), whether of a technical, engineering,
operational or economic nature, supplied to or obtained by Recipient in
writing, in the form of drawings, orally or by observation, and all
information, documents and materials derived there from or utilizing the
same, whether supplied by or obtained from BION or prepared by Recipient,
except only information which is now or hereafter becomes generally and
conveniently available as part of the public domain through publication in
the applicable trade through no act or omission of Recipient, or information
which Recipient proves with tangible documentary evidence was in Recipient's
possession at the time of receipt from BION, or which hereafter comes into
Recipient's possession, and was not or is not acquired by Recipient directly
or indirectly from BION, sources under obligation of secrecy to BION or
sources which require Recipient to hold it in confidence, provided that
Recipient gives advance written notice to BION justifying any exception or
exclusion from Confidential Information prior to Recipient making any
disclosure or unauthorized use thereof. Disclosures made under this
agreement, which are specific, shall not be deemed to be within the foregoing
exceptions merely because they are embraced by more general information in
the public domain or in the prior possession of Recipient. In addition, any
combination of features shall not be deemed to be within the foregoing
exceptions merely because individual features are in the public domain or in
the possession of Recipient, but only if the combination itself, including
both its principle of operation and an appreciation of its relevance and
usefulness in the applicable trade, are in the public domain or in the
possession of Recipient without a further collecting, searching and/or
combining effort for which those in the trade would be expected to pay.
2. In consideration of and as an inducement to BION's willingness to
disclose Confidential Information to Recipient, Recipient agrees:
(a) Not to make any use whatsoever of Confidential Information
except for the purposes specified herein and/or in other agreements with
BION, and accordingly, without limiting the generality of the foregoing, not
to use such information in connection with any other work performed by
Recipient either for itself, for any client, or for any other person, firm or
corporation.
(b) Not to reveal or disclose directly or indirectly any
Confidential Information to third parties, and not to assist anyone else in
so doing, and accordingly, without limiting the generality of the foregoing,
not to supply any such information to any prospective customer of Recipient.
For the purpose of this agreement, "third parties" shall be deemed to include
any and all subsidiaries and affiliates of Recipient not directly performing
services for BION.
(c) To keep all such Confidential Information strictly secret and
confidential and to that end, without limiting the generality of the
foregoing, to cause all written materials relating to or containing such
information, including all sketches, drawings, reports and notes, and all
copies, reproductions, reprints and translations, to be plainly marked to
indicate the secret and confidential nature thereof and to prevent
unauthorized use or reproduction.
(d) To take reasonable precautions in order that the secrecy of
such information is preserved among Recipient's employees having access to
any significant portion of such information, to permit access to such
information only to those employees who need to know such information for the
purposes specified above, and then only to the extent necessary for such
employees to carry out their respective tasks, and to assume the
responsibility that such employees will preserve the secrecy of such
information with respect to third parties, and will observe the use
limitations thereon. BION shall be deemed a third-party beneficiary of such
employees' obligations to Recipient in this regard.
(e) To promptly and fully disclose to BION, and preserve as the
sole property of and for the sole benefit of BION, any and all data,
observations, discoveries, inventions, processes, improvements or devices
derived in any part from Confidential Information ("Products"). Recipient
agrees that it will not compete with BION in any markets (presently existing
or developed in the future) based on the Confidential Information and/or the
Products. Recipient further agrees that, at the request of BION, it will
promptly prepare reports on activities undertaken by Recipient in accord with
this agreement. Further, to the extent that any Product(s) may be capable of
protection by patent, copyright or otherwise, all rights of any kind or
nature in and to such Product(s) throughout the world, as between Recipient
and BION, shall be the sole and exclusive property of BION. Recipient hereby
transfers, conveys and assigns such rights to BION, and agrees never to claim
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any adverse rights therein, and Recipient agrees to cooperate with BION in
connection therewith, including taking all actions and executing all
documents (including without limitation assignments and/or patent
applications) requested by BION to confirm, perfect, secure and/or support
BION's ownership thereof and BION's efforts to obtain rights therein.
(f) Upon request by BION, Recipient will promptly return all
written materials of the type described in (c) and (e) to BION, within five
(5) days of such request, and Recipient shall thereafter make no further use
thereof or of any Confidential Information.
(g) This agreement will be governed and construed in accordance
with the laws of the State of New York. Recipient hereby submits to personal
jurisdiction and consents to venue in the federal and state courts of New
York for any action involving this Agreement.
(h) Without the prior written consent of BION, Recipient will not
disclose to any person either (i) the fact that discussions or negotiations
are taking place concerning a possible transaction, or (ii) any of the terms,
conditions or other facts with respect to any such possible transaction,
including the status thereof.
(i) For a period on one (1) year from the date hereof Recipient
shall not, without BION's prior written consent, employ any employee of BION,
or solicit any of the employees of BION whom Recipient meets or learns about
in connection with its evaluation of BION. The foregoing restrictions shall
not apply to employees whose employment was terminated by BION.
3. Recipient's receipt of Confidential Information from BION is at the
request of Recipient, and is subject to all the obligations and restrictions
hereinabove set forth. Recipient shall be solely responsible for any and all
liability arising from use of all Confidential Information and other
information provided to Recipient by BION and shall hold BION harmless and
indemnify BION for any claims, liability or obligations asserted against BION
as the result of Recipient's use of any such information. BION makes no
representations or warranties respecting the information provided to
Recipient.
4. Recipient agrees that money damages would not be readily calculable
and would not be a sufficient remedy for any breach or threatened breach of
this Agreement by Recipient, that BION will suffer irreparable harm from any
such breach and that, in addition to all other remedies which may be
available, BION shall be entitled to specific performance and preliminary
injunctive or other equitable relief as a remedy for any such breach or
threatened breach, and Recipient further agrees to waive any requirement for
the securing or posting of any bond in connection with any such remedy.
5. Recipient shall promptly notify BION in writing of any facts that
may come to Recipient's attention indicating or suggesting that any
unauthorized person may have obtained access to, may be attempting to acquire
or may be using the Confidential Information.
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6. Recipient acknowledges that this Agreement does not grant to
Recipient any license or other rights to utilize the Confidential Information
and does not grant any license under any patents or other rights which BION
may now have or may hereafter obtain therein, other than as expressly set
forth herein, and there is no implied obligation of BION to grant Recipient
any such right or license.
7. Recipient agrees that BION shall not be obligated to pay any fees
on Recipient's behalf to any broker, finder or other party claiming to
represent Recipient in any transaction. Without limiting the generality of
the nondisclosure agreements set forth above, Recipient further acknowledges
that Recipient is strictly prohibited from acting as a broker or agent using
any of the Confidential Information provided by BION.
8. Recipient acknowledges that the US securities laws prohibit any
person whom has material nonpublic information concerning an issuer of
publicly held securities from purchasing or selling such securities.
BION ENVIRONMENTAL RECIPIENT:
TECHNOLOGIES, INC. NAME OF ENTITY
By: ________________________________ By: ______________________________
Xxxxx X. Xxxxxx, Ph.D., P.E. (type name)
Title: Chief Technology Officer Title: ___________________________
Date: May 24, 2005 Date: ________________________
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