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AN ACT to amend 895.85 (2); and to create 134.93
of the statutes; relating to: the payment of commissions
owed to an independent sales representative.
The people of the state of Wisconsin, represented
in senate and assembly, do enact as follows:
97 Wis. Act 71, s. 1
Section 1. 134.93 of the statutes is created
to read:
97 Wis. Act 71, s. 1 - continued
134.93 Payment of commissions to independent sales representatives.
(1) DEFINITIONS. In this section:
97 Wis. Act 71, s. 1 - continued
(a) "Commission" means compensation accruing
to an independent sales representative for payment by
a principal, the rate of which is expressed as a percentage
of the dollar amount of orders or sales made by the
independent sales representative or as a percentage
of the dollar amount of profits generated by the independent
sales representative.
97 Wis. Act 71, s. 1 - continued
(b) "Independent sales representative" means
a person, other than an insurance agent or broker, who
contracts with a principal to solicit wholesale orders
and who is compensated, in whole or in part, by commissions.
"Independent sales representative" does not
include any of the following:
97 Wis. Act 71, s. 1 - continued
1. A person who places orders or purchases products
for the person's own account for resale.
97 Wis. Act 71, s. 1 - continued
2. A person who is an employee of the principal and
whose wages must be paid as required under s. 109.03
97 Wis. Act 71, s. 1 - continued
(c) "Principal" means a sole proprietorship,
partnership, joint venture, corporation or other business
entity, whether or not having a permanent or fixed place
of business in this state, that does all of the following:
97 Wis. Act 71, s. 1 - continued
1. Manufactures, produces, imports or distributes a
product for wholesale.
97 Wis. Act 71, s. 1 - continued
2. Contracts with an independent sales representative
to solicit orders for the product.
97 Wis. Act 71, s. 1 - continued
3. Compensates the independent sales representative,
in whole or in part, by commission.
97 Wis. Act 71, s. 1 - continued
(2) COMMISSIONS; WHEN DUE. (a) Subject to pars.
(b) and (c), a commission becomes due as provided in
the contract between the principal and the independent
sales representative.
97 Wis. Act 71, s. 1 - continued
(b) If there is no written contract between the principal
and the independent sales representative, or if the
written contract does not provide for when a commission
becomes due, or if the written contract is ambiguous
or unclear as to when a commission becomes due, a commission
becomes due according to the past practice used by the
principal and the independent sales representative.
97 Wis. Act 71, s. 1 - continued
(c) If it cannot be determined under par. (a) or (b)
when a commission becomes due, a commission becomes
due according to the custom and usage prevalent in this
state for the particular industry of the principal and
independent sales representative.
97 Wis. Act 71, s. 1 - continued
(3) NOTICE OF TERMINATION OR CHANGE IN CONTRACT.
Unless otherwise provided in a written contract between
a principal and an independent sales representative,
a principal shall provide an independent sales representative
with at least 90 days prior written notice of any termination,
cancellation, nonrenewal or substantial change in the
competitive circumstances of the contract between the
principal and the independent sales representative.
97 Wis. Act 71, s. 1 - continued
(4) COMMISSIONS DUE; PAYMENT ON TERMINATION OF CONTRACT.
A principal shall pay an independent sales representative
all commissions that are due to the independent sales
representative at the time of termination, cancellation
or nonrenewal of the contract between the principal
and the independent sales representative as required
under sub. (2).
97 Wis. Act 71, s. 1 - continued
(5) CIVIL LIABILITY. Any principal that violates
sub. (2) by failing to pay a commission due to an independent
sales representative as required under sub. (2) is liable
to the independent sales representative for the amount
of the commission dues and for exemplary damages of
not more than 200% of the amount of the commissions
due. In addition, the principal shall pay to the independent
sales representative, notwithstanding the limitations
specified in s. 799.25 or 814.04, all actual costs,
including reasonable actual attorney fees, incurred
by the independent sales representative in bringing
an action, obtaining a judgement and collecting on a
judgement under this subsection.
97 Wis. Act 71, s. 2
Section 2. 895.85 (2) of the statutes is amended
to read:
97 Wis. Act 71, s. 2 - continued
895.85 (2) SCOPE. This section does not apply
to awards of double damages or treble damages, or to
the award of exemplary damages under ss. 46.90 (6) (c),
51.30 (9), 51.61 (7), 103.96 (2), 134.93 (5), 153.85,
252.14 (4), 252.15 (8) (a), 943.245 (2) and (3) and
943.51 (2) and (3).
97 Wis. Act 71, s. 3
Section 3. Initial applicability.
97 Wis. Act 71, s. 3 - continued
(1) This act first applies to an independent sales representative,
as defined in section 134.93 (1) (b) of the statues,
as created by this act, who is affected by an agreement
that contains provisions that are inconsistent with
section 134.93 (3), (4) or (5) of the statutes, as created
by this act, on the day after the agreement expires
or on the day on which the agreement is extended, modified
or renewed, whichever occurs first.
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