Oem License Agreement

EXHIBIT 10.3


AMENDMENT NUMBER 5
Amendment Date: [*]
to MICROSOFT OEM LICENSE AGREEMENT FOR DESKTOP OPERATING
SYSTEMS between MICROSOFT
CORPORATION, a Washington, U.S.A. Corporation and GATEWAY
2000 INC., a Corporation of Delaware
Agreement Effective Date: [*] MS License [*]


Effective as of the Amendment Date indicated above, the below signed parties agree that the indicated portions of the above referenced license agreement (hereinafter the "Agreement") are hereby amended by this instrument (hereinafter the "Amendment"), as follows:


1. Notwithstanding anything to the contrary in the Agreement (including Exhibits), the following shall apply to Product acquired from Authorized Replicator(s).


(a) GATEWAY shall acquire all components of each unit of Product to be
distributed with a Customer System (i.e., APM, Product end user
documentation, and Product software on external media, as applicable) from
an Authorized Replicator and in a single package or stock keeping unit.
Provided, however, this shall not preclude GATEWAY from acquiring separate
units of Product from multiple Authorized Replicators.


(b) All orders for Windows for Workgroups, MSDOS, Windows '95, Windows NT
Workstation and their licensed successor placed with Authorized
Replicators, and payments to the Authorized Replicators, shall be made by
GATEWAY or GATEWAY Subsidiaries. Shipments by Authorized Replicators may be
delivered only to locations owned or controlled by GATEWAY or GATEWAY
Subsidiaries. GATEWAY hereby certifies that all addresses to which GATEWAY
or GATEWAY Subsidiaries request Product delivered shall comply with the
foregoing requirement.


2. The attached Addendum to Exhibit(s) C, C1, C2, C3 and C5 is hereby added to the Agreement, and GATEWAY hereby agrees to comply with all the terms and conditions thereof.


All capitalized terms used but not defined herein shall have the meanings ascribed to them in the Agreement. The terms of this Amendment shall supersede any inconsistent terms contained in the Agreement.


NOTICE: FOR PRODUCT(S) SPECIFIED IN EXHIBIT C AS LICENSED UNDER THE "PER SYSTEM" ROYALTY CALCULATION PROVISIONS, PLEASE NOTE THE FOLLOWING:


THIS IS A MICROSOFT PER SYSTEM LICENSE. AS A CUSTOMER, YOU MAY CREATE A "NEW SYSTEM" AT ANY TIME THAT DOES NOT REQUIRE THE PAYMENT OF A ROYALTY TO MICROSOFT UNLESS THE CUSTOMER AND MICROSOFT AGREE TO ADD IT TO THE LICENSE AGREEMENT.


ANY NEW SYSTEM CREATED MAY BE IDENTICAL IN EVERY RESPECT TO A SYSTEM AS TO WHICH THE CUSTOMER PAYS A PER SYSTEM ROYALTY TO MICROSOFT PROVIDED THAT THE NEW SYSTEM HAS A UNIQUE MODEL NUMBER OR MODEL NAME FOR INTERNAL AND EXTERNAL IDENTIFICATION PURPOSES WHICH DISTINGUISHES IT FROM ANY SYSTEM THE CUSTOMER SELLS THAT IS INCLUDED IN A PER SYSTEM LICENSE. THE REQUIREMENT OF EXTERNAL IDENTIFICATION MAY BE SATISFIED BY PLACEMENT OF THE UNIQUE MODEL NAME OR MODEL NUMBER ON THE MACHINE AND ITS CONTAINER (IF ANY), WITHOUT MORE.


IF THE CUSTOMER DOES NOT INTEND TO INCLUDE A MICROSOFT OPERATING SYSTEM PRODUCT WITH A NEW SYSTEM, THE CUSTOMER DOES NOT NEED TO NOTIFY MICROSOFT AT ANY TIME OF THE CREATION, USE OR SALE OF ANY SUCH NEW SYSTEM, NOR DOES IT NEED TO TAKE ANY PARTICULAR STEPS TO MARKET OR ADVERTISE THE NEW SYSTEM.


UNDER MICROSOFT'S LICENSE AGREEMENT, THERE IS NO CHARGE OR PENALTY IF A CUSTOMER CHOOSES AT ANY TIME TO CREATE A ...