CONSULTING SERVICES AGREEMENT FOR THE IBM/SBC AND OTHER PROJECTS

EXHIBIT 10.2

CONSULTING SERVICES AGREEMENT FOR THE IBM/SBC AND OTHER PROJECTS

        This Consulting Services Agreement (“Agreement”) is made and entered into as of the 1st day of July, 2000 (the “ Effective Date”), by and between Peritus Software Services, Inc. (“Peritus”), a Massachusetts corporation, with its principal place of business at 000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000 and Rocket Software, Inc. (“ Client”), a Massachusetts corporation, with its principal place of business at Xxx Xxxxx Xxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.

        Peritus and Client agree that the following terms and conditions will apply to the services provided by Peritus for Client as specified in Statement of Work No. 1, attached hereto and incorporated herein by reference, and any future Statement of Work which may be agreed to in writing between the parties (the “Services”).

        1.    Term and Termination.    The Agreement shall commence as of the Effective Date and shall remain in effect for a period of two (2) years, unless otherwise extended by written agreement of the parties or earlier terminated in accordance with the provisions of this paragraph. This Agreement and any Statement of Work attached hereto may not be terminated by either party (unless otherwise provided for in the applicable Statement of Work), except that either party may terminate the Agreement or a Statement of Work at any time effective immediately upon written notice to the other party, if the other party fails to perform any of its obligations under this Agreement or such Statement of Work and fails to remedy such breach within thirty (30) days following the receipt of written notice of the breach from the non-breaching party. The duration of any Services engagement hereunder shall be as set forth in the applicable Statement of Work, unless earlier terminated as set forth herein in which case Client shall be obligated to pay Peritus for all Services performed through the effective date of such termination. Upon the expiration or termination of this Agreement or any Statement of Work hereunder, each party shall promptly return to the other all data, material, and other properties of the other party which relate to the Agreement or such expired or terminated Statement(s) of Work, as the case may be.

        2.    Site of Services.    The Services provided under this Agreement shall be performed at the site set forth in the applicable Statement of Work.

        3.    Fees and Payment Terms.    In consideration of the Services rendered by Peritus hereunder, Client will pay to Peritus a fee(s) as set forth in the applicable Statement of Work. Such fee(s) will be invoiced upon completion of the Services (or on a monthly basis if Services are being performed for longer than a month) and shall be due upon receipt of such invoice(s).

        4.    Expenses.    Any out-of-pocket expenses incurred by Peritus shall be paid by Client promptly after receipt of an invoice therefor. Out-of-pocket expenses shall mean any reasonable and documented expenses incurred in connection with the performance of the Services under this Agreement such as travel, meals and lodging expenses, in the event the Services are to be performed at a location other than the offices of Peritus. All travel by Peritus staff shall be in accordance with Peritus’ standard policies governing travel and business expenses.

        5.    Confidentiality.    Peritus agrees to treat any information received from Client during the performance of Services hereunder which has been identified in writing as confidential or proprietary in the same manner as it would treat its own confidential or proprietary information of a similar nature and shall not disclose such information except to those employees or agents with a need to know. The foregoing shall not apply to information which (i) is publicly known through no breach of the confidentiality provisions of this Agreement by Peritus, (ii) was previously known by or in the possession of Peritus without use of confidential or proprietary information obtained though the performance of Services under this Agreement, (iii) is independently developed by Peritus without use of confidential or proprietary information obtained through the performance of Services under this Agreement, (iv) is approved for release by written authorization by Client, or (v) is released by Peritus pursuant to a good faith adherence to a court order. The confidentiality obligations imposed herein shall extend for a period of three (3) years following disclosure of the confidential and proprietary information to Peritus.

        6.    Ownership Rights.    Client shall retain all right, title or interest in and to (i) any product which is developed specifically and exclusively for Client pursuant to any fully-executed Statement of Work under this Agreement, (ii) any revisions, modifications, updates, upgrades or enhancements to Client’s products or product code which are created or developed by Peritus specifically for Client pursuant to any fully-executed Statement of Work to this Agreement, and (iii) any materials furnished by Client to Peritus under this Agreement.

        Except as set forth in the previous paragraph, Peritus retains all right, title and interest in and to any software, methods, techniques, systems, data and materials used or developed by it in the performance of the Services. Peritus shall retain all rights to and be entitled to use, disclose, and otherwise employ any and all ideas, concepts, know-how, knowledge bases, methods, techniques, processes, skills, and adaptations, including generalized features of sequence, structure, and organization, in conducting its business, providing the Services or pertaining to its software or methodologies. Nothing in this Agreement shall be deemed to implicitly or explicitly grant any license or other right to Client to use, possess, copy or own any of Peritus’ software, products, processes, techniques, methodologies, knowledge bases or intellectual property. This Agreement shall not limit Peritus’ ability to market, develop and provide functionally comparable deliverables, work products or services to others based on the same general concepts, techniques and routines as are used hereunder. This Agreement shall not preclude Peritus from developing or providing deliverables, work products or services which are competitive to deliverables, work products or services which might be provided to Client, irrespective of their similarity.

        7.    Limitation of Liability.    Peritus’ liability for any and all claims of damages arising out of this Agreement shall be limited to direct damages and shall not exceed the amount paid to Peritus for the performance of Services hereunder.

        IN NO EVENT SHALL PERITUS BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING ANY DAMAGES RESULTING FROM THE LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, OR LOSS OF BUSINESS, EVEN IF PERITUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

        8.    Warranty of Performance.    Peritus warrants that the Services performed under this Agreement will be performed in a good and workmanlike manner, subject to the supervision and instructions provided by Client, and that the Services will be performed substantially as specified under this Agreement.

        THE EXPRESS WARRANTY SET FORTH IN THIS SECTION 8 IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

        9.    Non-Solicitation.    The parties agree that during the performance of Services by Peritus hereunder and for a period of one year thereafter, neither party shall directly or indirectly solicit, hire or otherwise retain as an employee or independent contractor, a staff member of the other party or a former staff member who was assigned to such Services.

        10.    Independent Contractors.    The relationship between Peritus and Client is that of independent contractors, and nothing in this Agreement shall be construed to create a relationship of employer and employee, agency, joint venturers or partners between the parties. Neither party shall have the right, power or authority to enter into agreements of any kind on behalf of the other party, or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party.

        11.    Assignment.    This Agreement may not be assigned by either party, whether by merger, consolidation, sale of assets or otherwise, without the prior written consent of the other party.

        12.    General.    The provisions of paragraphs 1, 5, 6, 7, 8, 9 and 12 shall survive any termination or expiration of this Agreement. This Agreement and any fully executed Statement of Work attached hereto set forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersede any and all oral and prior written agreements, understandings and quotations relating thereto. No alteration, modification, or cancellation of any of the provisions of this Agreement shall be binding unless made in writing and signed by officers of the parties. Printed terms and conditions on Client’s purchase order(s) shall not apply to the Services performed hereunder. This Agreement will be governed by, and construed and enforced in accordance with, the substantive laws of the Commonwealth of Massachusetts, U.S.A.

        The Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, permitted assigns and legal representatives.

Client: Rocket Software, Inc. By:  (Authorized Signature) Name:  Title:  Date:  Peritus Software Services, Inc. By:  (Authorized Signature) Name:  Title:  Date: