GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2003
SESSION LAW 2003-331
SENATE BILL 293
AN ACT to amend the law governing sales representative commissions.
The General Assembly of North Carolina enacts:
SECTION 1. Article 27 of Chapter 66 of the General Statutes reads as rewritten:
"Sales Representative Commissions.
"§ 66-190. Definitions.
The following definitions apply in this Article:
(1) "Commission"
means compensation accruing to a sales representative for payment by a
principal, the rate of which is expressed as a percentage of the amount of orders
or sales orders, sales, or profits or as a specified amount per
order or per sale.
(2) "Person"
means an individual, corporation, limited liability company,
partnership, unincorporated association, estate, or trust.
trust, or other entity.
(3) "Principal"
means a person who does not have a permanent or fixed place of business in
this State and who:
a.
Manufactures, produces, imports, or distributes a tangible product for
sale at wholesale; or service;
b. Contracts
with a sales representative to solicit orders for the product; product
or service; and
c. Compensates the sales representative, in whole or in part, by commission.
(4) "Sales representative" means a person who:
a. Contracts
with a principal to solicit wholesale orders; orders for products or
services;
b. Is compensated, in whole or in part, by commission;
c. Does not
place orders or purchase for his own account or for resale; Is not a
seller who complies with:
1. G.S. 25A-39 and G.S. 25A-40; or
2. Part 429 of 16 Code of Federal Regulations (January 1, 2003);
d. Does
not sell or take orders for the sale of products at retail; and
e. Is not an
employee of the principal. principal;
f. Does not sell or take orders for the sale of advertising services; and
g. Is not a person requiring a real estate broker's or sales agent's license under Chapter 93A of the General Statutes.
(5) "Terminate" and "termination" mean the end of the business relationship between the sales representative and the principal, whether by agreement, by expiration of time, or by exercise of a right of termination of either party.
"§ 66-190.1. Written contracts.
The agreement or contract between a sales representative and a principal shall be in writing. The absence of a written agreement or contract shall not bar a cause of action by, or any remedy available to, a party.
"§ 66-191.
Payment of commissions. commissions; termination.
When a contract between a sales representative and a
principal is terminated for any reason other than malfeasance on the part of
the sales representative, the principal shall pay the sales representative all
commissions accrued under the contract to the sales representative within 45
days after the effective date of the termination. due under the contract
within 30 days after the effective date of the termination and all commissions
that become due after the effective date of termination within 15 days after
they become due. If the principal does not make payment as required by this
section, the sales representative shall make a written demand upon the
principal, sent by certified mail, for the commissions then due. The principal
shall respond in writing to the demand within 15 days after the principal
receives the written demand.
"§ 66-192. Civil liability.
(a) A principal who fails
to comply with the provisions of G.S. 66-191 G.S. 66-191 or is shown
to have wrongfully revoked an offer of commission under G.S. 66-192.1 is
liable to the sales representative in a civil action for (i) all amounts due
the sales representative plus exemplary damages in an amount not to exceed two
times the amount of commissions due the sales representative, (ii)
attorney's fees actually and reasonably incurred by the sales representative in
the action, and (iii) court costs.
(b) Where the court determines that an action brought by a sales representative against a principal under this Article is frivolous, the sales representative is liable to the principal for court costs and for attorney's fees actually and reasonably incurred by the principal in defending the action.
(c) A principal who is not a resident of this State who contracts with a sales representative to solicit orders in this State shall be subject to personal jurisdiction as provided in G.S. 1-75.4.
(d) Nothing in this Article shall invalidate or restrict any other or additional right or remedy available to a sales representative or preclude a sales representative from seeking to recover in one action on all claims against a principal.
"§ 66-192.1. Revocable offers of commission; entitlement.
If a principal makes a revocable offer of a commission to a sales representative, the sales representative is entitled to the commission agreed upon if:
(1) The principal revokes the offer of commission;
(2) The sales representative establishes that the revocation was for the purpose of avoiding payment of the commission;
(3) The revocation occurs after the principal has obtained a written order for the principal's product or service because of the efforts of the sales representative; and
(4) The principal's product or service that is the subject of the order is provided to and paid for by a customer.
"§ 66-193. Contracts void.
A provision in any contract between a sales representative and a principal purporting to waive any provision of this Article, whether by expressed waiver or by a contract subject to the laws of another state, is void."
SECTION 2. This act becomes effective October 1, 2003, and applies to causes of action accruing on or after that date.
In the General Assembly read three times and ratified this the 9th day of July, 2003.
s/ Beverly E. Perdue
President of the Senate
s/ James B. Black
Speaker of the House of Representatives
s/ Michael F. Easley
Governor
Approved 6:47 p.m. this 20th day of July, 2003