Chapter 646A — Trade Regulation

2009 EDITION

TRADE REGULATION

TRADE REGULATIONS AND PRACTICES

SALES

(Health Spas)

646A.030 Definitions for ORS 646A.030 to 646A.042

646A.032 Price list for health spa services

646A.034 Contracts; contents

646A.036 Contracts and rules; delivery to buyer

646A.038 Moneys paid prior to facility opening; disposition; priority of claim; refund

646A.040 Waiver of provisions of ORS 646A.030 to 646A.042

646A.042 Remedies and obligations supplementary to existing remedies

(Manufactured Dwellings)

646A.050 Definitions

646A.052 Form of purchase agreement

646A.054 Rules

(Purchase of Used Goods)

646A.060 Purchase of used goods; records; application to pawnbrokers

646A.062 Penalty for violation of ORS 646A.060

(Telephonic Equipment)

646A.070 Sale of telephonic equipment; disclosure requirements; enforcement; penalty

646A.072 Exceptions to disclosure requirements

(Retail Pet Stores)

646A.075 Required information prior to purchase of dog

646A.077 Qualification for full refund; replacement dog; reimbursement for cost of veterinary care; exceptions

(Miscellaneous Transactions)

646A.080 Sale of novelty item containing mercury; penalty

646A.081 Prohibition on sale or installation of mercury vapor outdoor lighting fixtures

646A.082 Floral retail sales; disclosure of principal place of business; enforcement; penalty

646A.085 Sale of rights by distributor to exhibit motion picture without first giving exhibitor opportunity to view motion picture prohibited; attorney fees

646A.090 Offer to sell or lease motor vehicle subject to future acceptance by lender; disposition of trade-in vehicle and items of value; liability

646A.095 Disclosure required when purchaser of product offered technical support through information delivery system

646A.097 Payment of sales commissions following termination of contract between sales representative and principal; definitions; civil action

(Going Out of Business Sales)

646A.100 Definitions for ORS 646A.100 to 646A.110

646A.102 Notice of intent to conduct going out of business sale; display and filing; exceptions; prohibited activities

646A.104 Information required in notice of intent

646A.106 Circumstances in which going out of business sale prohibited

646A.108 Prohibited conduct

646A.110 Applicability of ORS 646A.100 to 646A.110 and 646A.112

646A.112 Injunction of sham sale; evidence; attorney fees; defense; definitions

646A.115 Software prohibited that interferes with sale of admission tickets to entertainment events; unlawful practice

RENTAL AND LEASE AGREEMENTS

(Lease-Purchase Agreements)

646A.120 Definitions for ORS 646A.120 to 646A.134

646A.122 Applicability of ORS 646A.120 to 646A.134

646A.124 General disclosure requirements

646A.126 Specific disclosure requirements

646A.128 Provisions prohibited in lease-purchase agreements

646A.130 Reinstatement of lease-purchase agreement by consumer; receipt for each payment

646A.132 Renegotiation or extension of lease-purchase agreement

646A.134 Disclosures required in advertisement for lease-purchase agreements

(Collision Damage Waivers in Vehicle Rentals)

646A.140 Definitions for ORS 646A.140 and 646A.142

646A.142 Rental vehicle collision damage waiver notice

SERVICE CONTRACTS

646A.150 Applicability of ORS 646A.150 to 646A.172

646A.152 Definitions for ORS 646A.150 to 646A.172

646A.154 Service contract defined; registration; proof of financial stability; bond; action; rules; applicability of Insurance Code

646A.156 Required contents of service contracts

646A.158 Prohibited conduct

646A.160 Service contract obligor as agent of insurer; indemnification or subrogation rights of insurer

646A.162 Investigation of violations; inspection of records; subpoenas; discontinue or desist order; civil penalties

646A.164 Complaints and investigations confidential; exceptions

646A.166 Refusal to continue or suspension or revocation of registration

646A.168 Assessment fee; rules; purpose; registration fee

646A.170 Remedies not exclusive

646A.172 Rules; exemption of certain obligors

CREDIT AND PURCHASING

(Credit and Debit Card Receipts)

646A.200 Definitions for ORS 646A.202 and 646A.204

646A.202 Payment processing systems

646A.204 Customer information

646A.206 Rules

(Numbers, Expiration Dates or Personal Information in Credit or Debit Card Transactions)

646A.210 Requiring credit card number as condition for accepting check or share draft prohibited; exceptions

646A.212 “Credit card” defined

646A.214 Verification of identity in credit or debit card transactions

(Credit and Charge Card Solicitation Disclosure Requirements)

646A.220 Credit card solicitation; required disclosure; definitions

646A.222 Charge card solicitation; required disclosure; definitions

(Enforcement)

646A.230 Action by Attorney General or district attorney; civil penalties

646A.232 Effect of compliance with federal law

(Extension of Credit)

646A.240 Treatment of child support obligations by creditor in applications for extensions of credit

646A.242 “Creditor” defined

646A.244 Cause of action for violation of ORS 646A.240; injunction; attorney fees; defenses

(Gift Cards)

646A.274 Definitions for ORS 646A.276 and 646A.278

646A.276 Sale of gift card that expires, declines in value or includes fee

646A.278 Requirements for sale of gift card that expires

(Simulated Invoices)

646A.280 Definitions for ORS 646A.280 to 646A.290

646A.282 Simulated invoices prohibited

646A.284 Cause of action by Attorney General; judgment; attorney fees

646A.286 Cause of action by private party; judgment; attorney fees

646A.288 Presumptions in cause of action brought under ORS 646A.284 or 646A.286

646A.290 Construction; other remedies

REPURCHASING

(Repurchase of Farm Implements by Supplier From Retailer)

646A.300 Definitions for ORS 646A.300 to 646A.322

646A.302 Application of ORS 646A.300 to 646A.322 to successor in interest or assignee of supplier

646A.304 Payment for farm implements, parts, software, tools and signs upon termination of retailer agreement

646A.306 Repurchase of inventory by supplier; effect of new retailer agreement

646A.308 Civil action for supplier’s failure to pay; venue

646A.310 Prohibited conduct by supplier

646A.312 Termination, cancellation or failure to renew retailer agreement; notice; good cause

646A.314 New or relocated dealership; notice; area of responsibility

646A.316 Warranty claims; payment; time for completion

646A.318 Warranty claims; processing

646A.320 Retailer’s improvements to products

646A.322 Remedies; arbitration; cause of action; attorney fees; injunctive relief

(Repurchase of Motor Vehicles)

646A.325 Repurchase of motor vehicle by manufacturer; notice to dealer; contents of notice; notice to prospective buyer

646A.327 Attorney fees for action under ORS 646A.325

MAILINGS AND DELIVERIES

(Mail Agents)

646A.340 Definitions for ORS 646A.340 to 646A.348

646A.342 Prohibited conduct; required verifications and notice

646A.344 Bond or letter of credit; action; exceptions

646A.346 Damages

646A.348 Action by Attorney General; civil penalty; injunction; damages; attorney fees and costs

(Delivery of Hazardous Materials)

646A.350 Delivery of unrequested hazardous substances prohibited

646A.352 Penalty

(Other Mailings or Deliveries)

646A.360 Unsolicited facsimile machine transmissions

646A.362 Exclusion of name from sweepstakes promotion mailing list; written request; rules

646A.365 Check, draft or payment instrument creating obligation for payment

AUTOMATIC DIALING AND ANNOUNCING DEVICES

646A.370 Definitions for ORS 646A.370 to 646A.374

646A.372 Limits on usage of automatic dialing and announcing device

646A.374 Prohibited actions

646A.376 Enforcement; civil penalty

WARRANTY REGULATION AND ENFORCEMENT

(Enforcement of Express Warranties on New Motor Vehicles)

646A.400 Definitions for ORS 646A.400 to 646A.418

646A.402 Availability of remedy

646A.404 Consumer’s remedies; manufacturer’s affirmative defenses

646A.405 Manufacturer action under ORS 646A.404; request to Department of Transportation; notice to buyer; unlawful practice; rules

646A.406 Presumption of reasonable attempt to conform; extension of time for repairs; notice to manufacturer

646A.408 Use of informal dispute settlement procedure as condition for remedy; binding effect on manufacturer

646A.410 Informal dispute settlement procedure; recordkeeping; review by Department of Justice

646A.412 Action in court; damages if manufacturer does not act in good faith; attorney fees; expert witness fees; costs

646A.414 Limitations on actions against dealers

646A.416 Limitation on commencement of action

646A.418 Remedies supplementary to existing statutory or common law remedies; election of remedies

(Vehicle Protection Product Warranties)

646A.430 Definitions for ORS 646A.430 to 646A.450

646A.432 Applicability of ORS 646A.430 to 646A.450; applicability of other law

646A.434 Sale of vehicle protection product; conditions and requirements

646A.436 Warrantor registration; requirements; expiration; fees; rules

646A.438 Reimbursement insurance; requirements; insurer qualifications

646A.440 Required provisions of reimbursement insurance policy; cancellation; notice

646A.442 Vehicle protection product warranty administrator

646A.444 Recordkeeping requirements for warrantor; record retention

646A.446 Prohibited conduct for warrantor

646A.448 Prohibited activities

646A.450 Rules; investigative powers of department

646A.452 Enforcement by Attorney General

(Warranties on Assistive Devices)

646A.460 Definitions for ORS 646A.460 to 646A.476

646A.462 Express warranty; duration

646A.464 Repair of assistive device

646A.466 Replacement or refund after attempt to repair

646A.468 Procedures for replacement or refund

646A.470 Sale or lease of returned assistive device

646A.472 Dispute resolution

646A.474 Applicability of other laws; waiver

646A.476 Civil action for damages; attorney fees; limitation on actions

VEHICLE REPAIR SHOPS

646A.480 Definitions for ORS 646A.480 to 646A.495

646A.482 Estimate required before beginning work; contents; evaluation

646A.486 Prohibited actions if estimate exceeds $200; revision of estimate; methods to obtain owner authorization

646A.490 Additional prohibited actions; reassembly required; copies

646A.495 Owner designee; waiver of authorization requirement

INFANT CRIB SAFETY

646A.500 Legislative findings; declaration of purpose

646A.502 Short title

646A.504 Definitions for ORS 646A.500 to 646A.514

646A.506 Prohibited conduct

646A.508 Penalties

646A.510 Exemptions

646A.512 Private right of action; attorney fees

646A.514 Scope of remedies

CHILDREN’S PRODUCTS

646A.525 Definitions for ORS 646A.525 to 646A.535

646A.530 Prohibited sales of certain children’s products; recall notices and warnings; disposal of recalled children’s products; compliance with warning instructions

646A.535 Assistance of Attorney General in obtaining recall notices

LICENSES

646A.550 Short title

646A.555 License to engage in business activity not required for individual under 17 years of age

IDENTITY THEFT PREVENTION

646A.600 Short title

646A.602 Definitions for ORS 646A.600 to 646A.628

646A.604 Notice of breach of security; delay; methods of notification; contents of notice; application of notice requirement

646A.606 Security freeze; requirements; effect

646A.608 Deadline for placement of security freeze; confirmation; personal identification number; lifting and removal; fees

646A.610 Permissible fees

646A.612 Conditions for lifting or removing security freeze

646A.614 Effect of security freeze on use of consumer reports

646A.616 Effect of request for consumer report subject to security freeze

646A.618 Prohibition on changes to consumer report subject to security freeze; entities subject to requirement to place security freeze

646A.620 Prohibition on printing, displaying or posting Social Security numbers; exemptions

646A.622 Requirement to develop safeguards for personal information; conduct deemed to comply with requirement

646A.624 Powers of director; penalties

646A.626 Rules

646A.628 Allocation of moneys

MORTGAGE RESCUE FRAUD PREVENTION ACT

(Foreclosure Consultants)

646A.700 Short title

646A.702 Definitions for ORS 646A.702 to 646A.720

646A.705 Persons that are not foreclosure consultants

646A.710 Foreclosure consulting contract; requirements; void provisions

646A.715 Cancellation; effective date; payment for services provided before cancellation or breach; form; sufficiency of notice

646A.720 Prohibited acts of foreclosure consultant

(Equity Conveyances)

646A.725 Definitions for ORS 646A.725 to 646A.750

646A.730 Persons that are not equity purchasers

646A.735 Written contract; requirements; void provisions; power of attorney prohibited

646A.740 Cancellation; effective date; rebuttable presumption of delivery; payment for services; form; sufficiency of notice; return of documents

646A.745 Required and prohibited acts

646A.750 Rebuttable presumptions; accounting; bona fide purchaser; memorandum of agreement; form

646A.755 Acts not precluded

646A.760 Civil action for damages; attorney fees and costs; limitation on commencement of action

(Penalties)

646A.765 Penalties

SALES

646A.010 [Formerly 646.185; repealed by 2009 c.170 §4]

646A.012 [Formerly 646.187; repealed by 2009 c.170 §4]

646A.014 [Formerly 646.189; repealed by 2009 c.170 §4]

646A.016 [Formerly 646.191; repealed by 2009 c.170 §4]

646A.018 [Formerly 646.193; repealed by 2009 c.170 §4]

646A.020 [Formerly 646.195; repealed by 2009 c.170 §4]

(Health Spas)

646A.030 Definitions for ORS 646A.030 to 646A.042. As used in ORS 646A.030 to 646A.042, unless the context requires otherwise:

(1) “Business day” means any day except a Sunday or a legal holiday.

(2) “Buyer” means a person who purchases health spa services.

(3) “Conspicuous” has the meaning given that term in ORS 71.2010 (2)(j).

(4) “Health spa” means any person engaged, as a primary purpose, in the sale of instruction, training, assistance or use of facilities that are purported to assist patrons in physical exercise, weight control or figure development. The term also includes any person engaged primarily in the sale of the right or privilege to use tanning booths, exercise equipment or facilities, such as a sauna, whirlpool bath, weight-lifting room, massage, steam room, or other exercising machine or device. “Health spa” does not include any facility owned and operated by the State of Oregon or any of its political subdivisions.

(5) “Health spa services” means services, privileges or rights offered for sale by a health spa.

(6) “Person” has the meaning given that term in ORS 646.605 (4). [Formerly 646.661; 2009 c.181 §106]

646A.032 Price list for health spa services. (1) Each health spa shall prepare and provide to each prospective buyer a written list of prices of all forms or plans of health spa services offered for sale by the health spa.

(2) A health spa may not sell any form or plan of health spa services not included in the list. [Formerly 646.666]

646A.034 Contracts; contents. A contract for the sale of health spa services must be in writing and a copy must be given to the buyer at the time the buyer signs the contract. The contract must contain all of the following:

(1) Identification of the person providing the health spa services.

(2) A description of the health spa services to be provided, or acknowledgment in a conspicuous form that the buyer has received a written description of the health spa services to be provided. If any of the health spa services are to be delivered at a planned facility, at a facility under construction or through substantial improvement to an existing facility, the description must include a date for the completion of the facility, construction or improvement.

(3) A complete statement of the rules of the health spa or an acknowledgment in a conspicuous form that the buyer has received a copy of the rules.

(4) A statement of the duration of the obligation of the health spa to provide health spa services to the buyer. The duration shall not exceed three years from the date of the contract.

(5) A provision for cancellation of the contract:

(a) If the buyer dies or becomes physically unable to use a substantial portion of those health spa services used by the buyer from the date of the contract until the time of disability. The contract may require that disability be confirmed by an examination of a physician agreeable to the buyer and the health spa.

(b) If the health spa goes out of business.

(c) If the health spa moves its facility closest to the residence of the buyer on the date of the contract to a location more than five additional miles from that residence.

(d) If a facility, construction or improvement is not completed by the date represented in the contract.

(e) If the health spa materially changes the health spa services promised as a part of the initial contract.

(6) A provision for a refund upon cancellation in an amount computed by dividing the contract price by the number of weeks in the contract term and multiplying the result by the number of weeks remaining in the contract term.

(7) A provision under a conspicuous caption in capital letters and boldfaced type stating:

______________________________________________________________________________

BUYER’S RIGHT TO CANCEL

If you wish to cancel this contract, without penalty, you may cancel it by delivering or mailing a written notice to the health spa. The notice must say that you do not wish to be bound by the contract and must be delivered or mailed before midnight of the third business day after you sign this contract. The notice must be mailed to: _________ (insert name and mailing address of health spa). If you cancel within the three days, the health spa will return to you within 15 days all amounts you have paid.

______________________________________________________________________________

[Formerly 646.671]

646A.036 Contracts and rules; delivery to buyer. Upon request, a health spa must deliver to a prospective buyer copies of the contract required by ORS 646A.034, and the rules of the health spa if not stated in the contract, and must allow the prospective buyer to retain the copies so provided. [Formerly 646.676]

646A.038 Moneys paid prior to facility opening; disposition; priority of claim; refund. (1) All moneys paid to a health spa by a buyer prior to the opening of the facility shall promptly be deposited by the health spa in a trust account, maintained by the health spa for the purpose of holding such moneys for the buyer, in a bank, savings and loan association, mutual savings bank or licensed escrow agent located in Oregon.

(2) The health spa shall within seven days of the first deposit notify the office of the Attorney General, in writing, of the name, address and location of the depository and any subsequent change thereof.

(3) The health spa shall provide the buyer with a written receipt for the moneys and shall provide written notice of the name, address and location of the depository and any subsequent change thereof.

(4) If prior to the opening of the facility the status of the health spa is transferred to another, any sums in the trust account affected by such transfer shall simultaneously be transferred to an equivalent trust account of the successor, and the successor shall promptly notify the buyer and the office of the Attorney General of the transfer and of the name, address and location of the new depository.

(5) The buyer’s claim to any moneys under this section is prior to that of any creditor of the health spa, including a trustee in bankruptcy or receiver, even if such moneys are commingled.

(6) After the health spa receives a notice of cancellation of the agreement or if the health spa fails to open a facility at the stated date of completion the health spa shall within 10 days give a full refund to the buyer, including the buyer’s pro rata share of any interest earned thereon.

(7) All sums received by a health spa in excess of the health spa’s normal monthly dues shall be placed in escrow subject to the terms and provisions stated in this section in the event that the health spa is not fully operational or in the event that the health spa is promising future construction or improvements. [Formerly 646.681]

646A.040 Waiver of provisions of ORS 646A.030 to 646A.042. A health spa shall not request a buyer to waive any provision of ORS 646A.030 to 646A.042. Any waiver by a buyer of any provision of ORS 646A.030 to 646A.042 is contrary to public policy and is void and unenforceable. [Formerly 646.686]

646A.042 Remedies and obligations supplementary to existing remedies. The remedies and obligations provided in ORS 646A.030 to 646A.042 are in addition to any other remedies and obligations, civil or criminal, existing at common law or under the laws of this state. [Formerly 646.691]

(Manufactured Dwellings)

646A.050 Definitions. As used in this section and ORS 646A.052:

(1) “Base price” means the total retail cost of the following unless separately disclosed as described in ORS 646A.052 (2):

(a) The manufactured dwelling as provided by the manufacturer;

(b) Features added by the dealer, if any;

(d) Delivery and installation as stated in the purchase agreement.

(2) “Buyer” means a person who buys or agrees to buy a manufactured dwelling.

(3) “Improvements” means goods and services not included in the base price that are, in general, needed to prepare a site and complete the setup of a manufactured dwelling. “Improvements” includes, but is not limited to, permits, site preparation, sidewalks, concrete, utility connections, skirting, steps, railings, decks, awnings, carports, garages, sheds, gutters, downspouts, rain drains, heat pumps, air conditioning, basements, plants and landscaping, installation fees and system development charges.

(4) “Manufactured dwelling” has the meaning given that term in ORS 446.003.

(5) “Manufactured dwelling dealer” or “dealer” means a person who sells a manufactured dwelling in a manner that makes the person subject to the license requirement of ORS 446.671.

(6) “Purchase agreement” means the written contract between the manufactured dwelling dealer and the buyer for the purchase of a manufactured dwelling. “Purchase agreement” does not include documents of a retail installment contract or loan agreement entered into as part of the purchase transaction. [Formerly 646.400]

646A.052 Form of purchase agreement. (1) A manufactured dwelling dealer who sells a manufactured dwelling shall use a purchase agreement form that complies with this section and rules adopted in accordance with ORS 646A.054.

(2) The purchase agreement shall include the base price and a written itemization that clearly and conspicuously discloses the retail prices of the following, if not included in the base price:

(a) Manufactured dwelling options that are ordered by the buyer.

(b) The amount of any refundable or nonrefundable administrative or processing fees paid to or collected by the dealer and the circumstances under which the fees may be returned to the buyer.

(c) The amount of any earnest money paid and the circumstances under which the earnest money may be returned to the buyer.

(d) Improvements provided by the dealer, or by a third party at the request of the dealer, to the extent known to the dealer at the time of sale. The written itemization of improvements under this paragraph excuses the dealer from providing the buyer with a separate statement of estimated costs under ORS 90.518 for those itemized improvements.

(e) All loan fees and credit report fees paid to or collected by the dealer to obtain financing for the buyer’s purchase of the manufactured dwelling and the circumstances under which the fees may be returned to the buyer.

(f) Alterations and upgrades to the manufactured dwelling made by the dealer or by a third party at the request of the dealer.

(g) Goods and services provided by the dealer, or by a third party at the request of the dealer, that are not otherwise disclosed pursuant to this section.

(h) Fees for the issuance or updating of an ownership document.

(i) The extended warranty contract, if any.

(j) Delivery, installation or site access costs that are not otherwise disclosed pursuant to this section, if any.

(3) The purchase agreement form must be accompanied by a list, provided by the Department of Justice, of governmental consumer protection agencies having jurisdiction over manufactured dwelling issues.

(4) Failure of a manufactured dwelling dealer to use a purchase agreement form that complies with this section and rules adopted in accordance with ORS 646A.054 is an unlawful practice under ORS 646.608.

(5) Except as provided in ORS 41.740, a purchase agreement is considered to contain all of the terms of the contract between the buyer and the manufactured dwelling dealer. No evidence of the terms of the contract may be presented other than the contents of the purchase agreement. As used in this subsection, “contract” does not include a retail installment contract or loan agreement entered into as part of a purchase transaction. [Formerly 646.402]

646A.054 Rules. The Department of Justice may adopt rules necessary and proper for the administration and enforcement of ORS 646A.052. [Formerly 646.404]

(Purchase of Used Goods)

646A.060 Purchase of used goods; records; application to pawnbrokers. (1) A person doing business as a consignment store, a buy-sell store, a secondhand store or a similar store or enterprise that in the regular course of business buys used goods from individuals for the purpose of resale shall:

(a) Require that the individual from whom the person buys the used goods present proof of identification; and

(b) Maintain a record of the name and address of the individual, the type of identification provided by the individual, the date and a description of the goods bought from the individual.

(2) If the goods described in subsection (1) of this section are private metal property or are constructed of or contain parts made of nonferrous metal property as those terms are defined in ORS 165.116, in addition to the requirements of subsection (1) of this section, the person shall comply with and is subject to the penalty provided for violating a provision of ORS 165.107, 165.118 or 165.122 that is applicable to a scrap metal business as defined in ORS 165.116.

(3) The person shall make all records required to be maintained by subsection (1) of this section available to any peace officer on demand.

(4) This section does not apply to pawnbrokers licensed under ORS 726.080.

(5) This section does not preempt, invalidate or in any way affect the operation of any provision of a county, city or district ordinance regulating the activities of consignment stores, buy-sell stores, secondhand stores or similar stores or enterprises that in the regular course of business buy used goods from individuals for the purpose of resale. [Formerly 646.848; 2009 c.811 §13]

646A.062 Penalty for violation of ORS 646A.060. A person that violates ORS 646A.060 (1) commits a Class B violation. [Formerly 646.849; 2009 c.811 §14]

(Telephonic Equipment)

646A.070 Sale of telephonic equipment; disclosure requirements; enforcement; penalty. (1) Any person offering for sale or selling new or reconditioned telephone handsets or keysets, private branch exchanges or private automatic branch exchanges of not more than a 20-station capacity shall disclose clearly, in writing, when reasonable, before sale all of the following information:

(a) Whether the equipment uses pulse, tone, pulse-or-tone or other signaling methods.

(b) Whether the equipment can access tone generated services.

(d) The person responsible for repair of the equipment.

(e) Minimum charges, if any, for repairs, handling and shipping.

(f) The terms of any written warranty offered with the equipment.

(2) A person who violates subsection (1) of this section commits an unlawful practice under ORS 646.608. The requirement under subsection (1) of this section is subject to enforcement and penalty as provided under ORS 646.605 to 646.652. [Formerly 646.850]

646A.072 Exceptions to disclosure requirements. (1) The requirement of disclosure under ORS 646A.070 does not apply:

(a) To any medium of advertising that accepts advertising in good faith without knowledge that the advertising violates any requirement under ORS 646A.070.

(b) To the sale or the offering for sale of radio equipment used for land, marine or air mobile service or any like service, regardless of whether such equipment is capable of interconnection by manual or automatic means to a telephone line.

(c) To equipment not intended for connection to the telephone network or to used equipment located on the customer’s premises.

(2) The requirement of disclosure under ORS 646A.070 (1)(d), (e) and (f) does not apply if the seller satisfies applicable requirements under the federal Magnuson-Moss Warranty Act (15 U.S.C. 2301 to 2312), except that the seller must provide the purchaser a copy of the warranty at the time of sale. [Formerly 646.855]

(Retail Pet Stores)

646A.075 Required information prior to purchase of dog. (1) As used in this section:

(a) “Dog” means a member of the subspecies Canis lupus familiaris or a hybrid of that subspecies.

(b) “Litter” means one or more dogs, sold individually or together, that are all or part of a group of dogs born to the same mother at the same time.

(d) “Retail pet store” does not mean a person that sells or offers to sell only dogs:

(A) That were bred or raised by the person; or

(B) That are kept primarily for the purpose of reproduction.

(2) A retail pet store that offers a dog for sale shall, prior to accepting an offer to purchase the dog, provide the person making the offer with the following information, in writing, regarding the dog:

(a) If known, the breed, age and date of birth for the dog.

(b) The sex and color of the dog.

(c) A list, and accompanying proof, of all inoculations that have been given to the dog by any person, and the date of those inoculations.

(d) A list of all medical treatment provided to the dog by any person, the date or treatment and the reasons for the treatment.

(e) The name and business address of the breeder and of the facility where the dog was born.

(f) If the breeder holds a license issued by the United States Department of Agriculture, the breeder’s federal identification number.

(g) The retail price of the dog.

(h) Any congenital disorder or hereditary diseases in the parents of the dog known to the pet dealer.

(i) If the dog is being sold with the representation that the dog qualifies for registration with a pedigree organization:

(A) The name and registration numbers of the parents of the dog; and

(B) The name and address of the pedigree organization with which the parents of the dog are registered.

(j) If the dog has previously been sold by the retail pet store and returned by the purchaser, the reason for the return.

(k) A statement in substantially the following form, with the applicable provision number circled:

______________________________________________________________________________

The facility in which this dog was born has produced:

1. 0 to 2 litters during the one-year period preceding the day this dog was born.

2. 3 to 10 litters during the one-year period preceding the day this dog was born.

3. 11 to 39 litters during the one-year period preceding the day this dog was born.

4. 40 or more litters during the one-year period preceding the day this dog was born.

______________________________________________________________________________

[2009 c.297 §5]

646A.077 Qualification for full refund; replacement dog; reimbursement for cost of veterinary care; exceptions. (1) As used in this section:

(a) “Litter” means one or more dogs, sold individually or together, that are all or part of a group of dogs born to the same mother at the same time.

(b) “Pet dealer” means, except as provided in paragraph (c) of this subsection, a person that sells five or more litters of dogs during a one-year period.

(2) Except as otherwise provided in this section, a pet dealer shall provide the purchaser of a dog that complies with subsection (3) of this section with a full refund of the purchase price for the dog if:

(a) No later than 15 days after purchasing the dog from the pet dealer the purchaser has the dog examined by a veterinarian and the examination reveals that the dog is diseased; or

(b) No later than one year after purchasing the dog from the pet dealer the purchaser has the dog examined by a veterinarian and the examination reveals that the dog has a congenital disorder that significantly limits the dog’s quality of life.

(3) To qualify for a refund under this section, the purchaser, no later than four business days after the veterinary examination that revealed the disease or disorder, must:

(a) Return the dog to the pet dealer;

(b) Provide the pet dealer with a dated written statement by the examining veterinarian that the dog has a disease or has a congenital defect; and

(4) Upon mutual agreement of the purchaser and pet dealer, the purchaser may accept a replacement dog instead of a refund.

(5) A purchaser that complies with subsection (2) of this section may, instead of obtaining a refund, require that the pet dealer reimburse the purchaser for the cost of veterinary care provided in connection with the disease or congenital disorder described in subsection (2) of this section. The duty of the pet dealer to reimburse the purchaser for the cost of veterinary care shall be limited to the purchase price of the dog. A purchaser that agrees to accept reimbursement under this subsection waives any other claim against the pet dealer for reimbursement of the cost of veterinary care for the dog.

(6) Notwithstanding subsections (1) to (5) of this section, a pet dealer is not required to refund the purchase price for a dog, provide a replacement dog or reimburse the purchaser for veterinary care if the pet dealer:

(a) At the time of sale made a clear and conspicuous disclosure in writing, initialed or signed by the purchaser, that disclosed the disease or disorder; or

(b) Had the dog examined by a veterinarian not more than 14 days prior to the date of sale and the examination did not disclose the disease or congenital disorder. [2009 c.297 §4]

(Miscellaneous Transactions)

646A.080 Sale of novelty item containing mercury; penalty. (1) A person may not sell or offer for sale a novelty item that contains encapsulated liquid mercury.

(2) Upon notification to the Department of Environmental Quality by any person that a novelty item for sale in the state contains encapsulated liquid mercury, the department shall notify persons identified as selling the novelty item of the prohibition on the sale of such items.

(3) The department may impose a penalty as provided in ORS 459.995 if a person continues to sell a novelty item that contains encapsulated liquid mercury after notification of the prohibition on the sale of such items. [Formerly 646.845]

646A.081 Prohibition on sale or installation of mercury vapor outdoor lighting fixtures. (1) As used in this section:

(a) “Mercury vapor lighting fixture” means an artificial illumination device that produces a high-intensity discharge of light by passing electricity through mercury vapor.

(b) “Outdoor lighting fixture” has the meaning given that term in ORS 757.765.

(2) A person may not sell an outdoor lighting fixture that is a mercury vapor lighting fixture.

(3) A person may not install a mercury vapor lighting fixture outdoors. This subsection does not apply to the reinstallation of an existing fixture after servicing or repair.

(4) State moneys may not be expended for the installation or reinstallation of outdoor lighting fixtures that are mercury vapor lighting fixtures. [2009 c.588 §3]

646A.082 Floral retail sales; disclosure of principal place of business; enforcement; penalty. (1) Any person engaging in floral retail sales shall disclose the person’s principal place of business in any written communications sent to customers, listings, advertising or websites that provide information about the person’s floral retail sales activities.

646A.085 Sale of rights by distributor to exhibit motion picture without first giving exhibitor opportunity to view motion picture prohibited; attorney fees. (1) As used in this section:

(a) “Distributor” means any person engaged in the business of distributing or supplying motion pictures to exhibitors by rental, sales, license or any other agreement to sell rights to exhibit a motion picture.

(b) “Exhibitor” means any person engaged in the business of operating one or more theaters in which motion pictures are exhibited to the public for a charge.

(c) “Market” means any geographical area in this state for which a distributor solicits exhibitors to compete, by bidding or other negotiations, for the rights to exhibit a motion picture.

(2) No distributor shall sell rights to exhibit a motion picture in this state unless each exhibitor solicited by the distributor for an offer to exhibit the motion picture is first allowed a reasonable opportunity to view the motion picture within the state. Any waiver of this subsection is void and unenforceable.

(3) Nothing in this section applies to any form of solicitation of offers for, negotiation concerning or sale of rights to exhibit a motion picture:

(a) That has been exhibited in this state before October 3, 1979.

(b) In a market where the motion picture has been exhibited for one week or more.

(4) An exhibitor may enforce this section by bringing an action in the appropriate court of this state. In enforcing this section a court may:

(a) Issue an injunction to prohibit violation of this section; and

(b) Award an exhibitor any actual damages arising from violation of this section.

(5) In any suit under subsection (4) of this section, the court shall award reasonable attorney fees at trial and on appeal to the prevailing party. [Formerly 646.868]

646A.090 Offer to sell or lease motor vehicle subject to future acceptance by lender; disposition of trade-in vehicle and items of value; liability. (1) As used in this section:

(a) “Buyer” means the purchaser or lessee of a motor vehicle.

(b) “Final approval of funding” means a lender’s irrevocable agreement to finance a sale or lease of a motor vehicle according to the exact terms that the seller and buyer have negotiated.

(d) “Motor vehicle” means a motor vehicle, as defined in ORS 801.360, that is sold or leased in this state for personal, family or household purposes.

(e) “Seller” means a holder of a current, valid vehicle dealer certificate issued under ORS 822.020 or renewed under ORS 822.040.

(2) A seller may make an offer to sell or lease a motor vehicle to a buyer or prospective buyer that is subject to future acceptance by a lender that may finance the transaction at the request of the seller.

(3) In any transaction described in subsection (2) of this section:

(a) If a lender does not agree to finance the transaction on the exact terms negotiated between the seller and the buyer within 14 days after the date on which the buyer takes possession of the motor vehicle and the seller has not received final approval of funding from the lender, the seller shall return to the buyer all items of value received from the buyer as part of the transaction; and

(b) If the seller has accepted a trade-in motor vehicle from the buyer or prospective buyer, the seller shall not sell or lease the buyer’s or prospective buyer’s trade-in motor vehicle before the seller has received final approval of funding from the lender.

(4) In any transaction described in subsection (2) of this section, if the buyer has accepted a motor vehicle from the seller, and a lender does not agree to finance the transaction on the exact terms negotiated between the seller and the buyer, the buyer shall return to the seller all items of value received from the seller as part of the transaction. The offer or contract to sell or lease the motor vehicle may provide in writing that the buyer is liable to the seller for:

(a) The fair market value of damage to, excessive wear and tear on or loss of the motor vehicle occurring between the date the buyer takes possession of the motor vehicle and the date the buyer returns the motor vehicle to the seller’s custody; and

(b) If, within 14 days of the date the buyer takes possession of the motor vehicle, the seller sends notice to the buyer by first class mail that financing is unavailable, a reasonable charge per mile for the use of the motor vehicle. If the buyer returns the motor vehicle within five days of the mailing of the notice, the seller may charge the buyer for miles driven during the first 14 days that the buyer had possession of the motor vehicle. If the buyer does not return the vehicle within five days of the mailing of the notice, the seller may charge the buyer for all miles driven while the buyer has possession of the motor vehicle. The charge may not exceed the rate per mile allowed under federal law as a deduction for federal income tax purposes for an ordinary and necessary business expense.

(5) It is an affirmative defense to a claim or charge of violating subsection (3)(a) of this section that the buyer failed to return the motor vehicle after the seller sent notice to the buyer by first class mail that financing was unavailable. [Formerly 646.877]

646A.095 Disclosure required when purchaser of product offered technical support through information delivery system. (1) Whenever the purchaser of a product sold at retail is offered ongoing technical support or service relating to the operation or use of the product, and the support or service is offered exclusively or in part through an information delivery system, the product or package of the product shall contain, in clear view to the purchaser before the product is opened, a statement disclosing that the technical support or service is provided through an information delivery system and listing the cost per minute of the support or service. The manufacturer of the product is responsible for providing the statement required under this subsection.

(2) As used in this section:

(a) “Information delivery system” means any telephone-recorded messages, interactive program or other information services that are provided on a pay-per-call basis through an exclusive telephone number prefix or service access code; and

(b) “Manufacturer” means a person who manufactures a product described in subsection (1) of this section. When the product is distributed or sold under a name other than that of the actual manufacturer of the product, the term “manufacturer” includes any person under whose name the product is distributed or sold. [Formerly 646.871]

646A.097 Payment of sales commissions following termination of contract between sales representative and principal; definitions; civil action. (1) As used in this section:

(a) “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 or as a specified amount per order or per sale.

(b) “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 wholesale;

(B) Contracts with a sales representative to solicit orders for the product; and

(A) Contracts with a principal to solicit wholesale orders;

(B) Is compensated, in whole or in part, by commission;

(D) Does not sell or take orders for the sale of products to the ultimate consumer.

(2) When a contract between a sales representative and a principal is terminated for any reason, the principal shall pay the sales representative all commissions accrued under the contract to the sales representative within 14 days after the effective date of the termination.

(3) A principal who fails to comply with the provisions of subsection (2) of this section is liable to the sales representative in a civil action for:

(a) All amounts due the sales representative plus interest on the amount due at the rate of nine percent per annum until paid; and

(b) Treble damages, if the failure to comply with the provisions of subsection (2) of this section is willful.

(4) The court shall award court costs and attorney fees actually and reasonably incurred by the prevailing party in an action to recover amounts, interest or damages due under subsection (3) of this section.

(5) A nonresident principal who contracts with a sales representative to solicit orders in this state is subject to the jurisdiction of the courts of this state to the extent specified in ORS 14.030.

(6) Any action commenced pursuant to this section must be commenced in the county in which the plaintiff resides at the time the action is commenced or in the county where the cause of action arose.

(7) Nothing in this section shall invalidate or restrict any other or any additional right or remedy available to a sales representative, or preclude a sales representative from seeking to recover in one action all claims against a principal.

(8) A provision in any contract between a sales representative and a principal purporting to waive any provision of this section, whether by expressed waiver or by a contract subject to the laws of another state, shall be void. [Formerly 646.878]

(Going Out of Business Sales)

646A.100 Definitions for ORS 646A.100 to 646A.110. As used in ORS 646A.100 to 646A.110:

(1) “Affiliated business” means a business or business location that is directly or indirectly controlled by, or under common control with, the business location listed in the notice of a going out of business sale or that has a common ownership interest in the merchandise to be sold at the business location listed in the notice of the sale.

(2)(a) “Going out of business sale” means a sale or auction advertised or held out to the public as the disposal of merchandise in anticipation of cessation of business, including but not limited to a sale or auction advertised or held out to the public as a “going out of business sale,” a “closing out sale,” a “quitting business sale,” a “loss of lease sale,” a “must vacate sale,” a “liquidation sale,” a “bankruptcy sale,” a “sale to prevent bankruptcy” or another description suggesting price reduction due to the imminent closure of the business.

(b) “Going out of business sale” does not include a sale conducted by a bankruptcy trustee or a court-appointed receiver.

(3) “Merchandise” means goods, wares or other property or services capable of being the object of a sale regulated under ORS 646A.100 to 646A.110.

(4) “Notice of intent” means a notice filed with the Secretary of State that a person intends to conduct a going out of business sale.

(5) “Person” has the meaning given that term in ORS 646.605. [2007 c.820 §1]

646A.102 Notice of intent to conduct going out of business sale; display and filing; exceptions; prohibited activities. (1) Except as provided in subsection (3) of this section, a person may not sell, offer for sale or advertise for sale merchandise at a going out of business sale unless the person has filed a notice of intent with the Secretary of State.

(2) A person must display a copy of the notice of intent filed with the Secretary of State in a prominent place on the premises where the going out of business sale is being conducted.

(3) If a going out of business sale is conducted as part of a bankruptcy, receivership or other court-ordered action, a person:

(a) Need not file a notice of intent with the Secretary of State.

(b) Shall display the court order or judgment ordering the sale in a prominent place on the premises where the going out of business sale is being conducted.

(4) A person may not:

(a) Conduct a going out of business sale for more than 90 days from the beginning date of the sale listed on the notice of intent.

(b) Continue to conduct a going out of business sale beyond the ending date listed on the notice of intent.

(5) A person who has conducted a going out of business sale may not conduct another going out of business sale for a period of one year after the ending date of the sale listed on the notice of intent. [2007 c.820 §2]

646A.104 Information required in notice of intent. A person filing a notice of intent with the Secretary of State shall provide all of the following information in the notice of intent:

(1) The name, address and telephone number of the owner of the merchandise to be sold. If the owner is a corporation, trust, unincorporated association, partnership or other legal entity, the person signing the notice must be an officer of the entity and must identify the person’s title.

(2) The name, address and telephone number of the person who will be in charge of and responsible for the conduct of the sale.

(3) The descriptive name, location and beginning and ending dates of the sale. [2007 c.820 §3]

646A.106 Circumstances in which going out of business sale prohibited. A person may not conduct a going out of business sale if a person who has an ownership interest in the business or in the merchandise to be sold is subject to a court order resulting from a civil enforcement action under ORS 646.608 or 646A.100 to 646A.110. [2007 c.820 §4]

646A.108 Prohibited conduct. (1) A person intending to conduct a going out of business sale may not transfer merchandise from an affiliated business or business location to the location of the sale.

(2) A person, after filing a notice of intent, may not buy or order merchandise, take merchandise on consignment or receive a transfer of merchandise from an affiliated business or business location for the purpose of selling the merchandise at the sale or sell such merchandise in a going out of business sale. [2007 c.820 §5]

646A.110 Applicability of ORS 646A.100 to 646A.110 and 646A.112. (1) ORS 646.608 (1)(ddd), 646A.100 to 646A.110 and 646A.112 apply only to persons who engage in the retail sale of merchandise in the regular course of their business.

(2) ORS 646.608 (1)(ddd), 646A.100 to 646A.110 and 646A.112 do not apply to public officials acting within the scope of their duties as public officials. [2007 c.820 §6; 2009 c.170 §2; 2009 c.604 §26]

646A.112 Injunction of sham sale; evidence; attorney fees; defense; definitions. (1) As used in this section:

(a) “Appropriate court” has the meaning given that term in ORS 646.605.

(b) “Relevant market” means:

(A) A product market that consists of products or services that a consumer would regard as interchangeable or substitutable by reason of the products’ or services’ characteristics, prices and intended use; or

(B) A geographic market that consists of the area in which the persons concerned are involved in the supply of a product or service and in which the conditions of competition are sufficiently homogenous.

(c) “Sham sale” means a going out of business sale, as defined in ORS 646A.100, conducted with the intent to continue the same or a similar business in the same location or at a location within the same relevant market but that is a sale that is represented as being conducted due to a cessation of business.

(2) A person may bring an action in an appropriate court to enjoin another person in the same relevant market from conducting a sham sale if the person reasonably believes the other person is conducting a sham sale. The court may provide such equitable relief as it deems necessary or proper.

(3) In an action brought by a person under this section, the court may award reasonable attorney fees to the person.

(4) It is prima facie evidence that a person alleged to be conducting a sham sale has the intent to continue the same or a similar business if:

(a) The person regularly receives additional inventory during the sham sale or, immediately prior to the sham sale, receives additional inventory that is not regularly delivered;

(b) The sham sale exceeds 90 days; or

(c) The same or a similar business that consists of inventory remaining from the sham sale and that has the same principal ownership resumes business in the same relevant market within 12 months from the cessation of the business.

(5) It is an affirmative defense to an action brought under this section that, during an alleged sham sale, the person no longer needed to go out of business and immediately canceled the alleged sham sale. [2007 c.820 §7]

646A.115 Software prohibited that interferes with sale of admission tickets to entertainment events; unlawful practice. (1) As used in this section:

(a) “Admission ticket” means evidence of a purchaser’s right of entry to a venue or an entertainment event.

(b) “Entertainment event” means a performance, recreation, amusement, diversion, spectacle, show or similar event including, but not limited to, a theatrical or musical performance, concert, film, game, ride or sporting event.

(c) “Operator” means a person that owns, operates or controls a venue or that produces or promotes an entertainment event, or the person’s agent or employee.

(d) “Resale” means a sale other than an operator’s initial sale of an admission ticket for a venue that is located in or an entertainment event that occurs in this state, irrespective of the location in which the sale occurs or the means by which a reseller solicits or advertises the sale or delivers or receives payment for the admission ticket.

(e) “Reseller” means a person other than an operator that conducts a resale.

(2) A person may not intentionally sell or use software, the purpose of which is to circumvent, thwart, interfere with or evade a control or measure, including a security measure or an access control system, that an operator or reseller establishes or uses to ensure an equitable distribution, sale or resale of admission tickets for an entertainment event.

(3) Violation of subsection (2) of this section is an unlawful practice under ORS 646.608 that is subject to an action under ORS 646.632 and 646.638. [2009 c.310 §1]

RENTAL AND LEASE AGREEMENTS

(Lease-Purchase Agreements)

646A.120 Definitions for ORS 646A.120 to 646A.134. As used in ORS 646A.120 to 646A.134:

(1) “Advertisement” means a commercial message in any medium that aids, promotes or assists, directly or indirectly, a lease-purchase agreement.

(2) “Cash price” means the price at which the lessor would have sold the property to the consumer for cash on the date of the lease-purchase agreement.

(3) “Consumer” means an individual who rents personal property under a lease-purchase agreement to be used primarily for personal, family or household purposes.

(4) “Consummation” means the time a consumer becomes contractually obligated on a lease-purchase agreement.

(5) “Lease-purchase agreement” means an agreement for the use of personal property by an individual for personal, family or household purposes, for an initial period of four months or less, that is automatically renewable with each payment after the initial period, but does not obligate or require the consumer to continue leasing or using the property beyond the initial period, and that permits the consumer to become the owner of the property.

(6) “Lessor” means a person who regularly provides the use of property through lease-purchase agreements and to whom lease payments are initially payable on the face of the lease-purchase agreement. [Formerly 646.245]

646A.122 Applicability of ORS 646A.120 to 646A.134. (1) Lease-purchase agreements that comply with ORS 646A.120 to 646A.134 are not governed by laws relating to:

(a) A security interest under ORS chapter 79.

(b) A retail installment contract under ORS 83.010 to 83.190.

(2) ORS 646A.120 to 646A.134 do not apply to the following:

(a) Lease-purchase agreements primarily for business, commercial or agricultural purposes, or those made with governmental agencies or instrumentalities or with organizations;

(b) A lease of a safe deposit box;

(c) A lease or bailment of personal property which is incidental to the lease of real property, and which provides that the consumer has no option to purchase the leased property; or

(d) A lease of a motor vehicle. [Formerly 646.247]

646A.124 General disclosure requirements. (1) The lessor shall disclose to the consumer the information required by ORS 646A.126. In a transaction involving more than one lessor, only one lessor need make the disclosures, but all lessors shall be bound by the disclosures.

(2) The disclosures shall be made at or before consummation of the lease-purchase agreement.

(3) The disclosures shall be made clearly and conspicuously in writing and a copy of the lease-purchase agreement shall be provided to the consumer. The disclosures required under ORS 646A.126 shall be made on the face of the contract above the line for the consumer’s signature.

(4) If a disclosure becomes inaccurate as the result of any act, occurrence or agreement by the consumer after delivery of the required disclosures, the resulting inaccuracy is not a violation of ORS 646A.120 to 646A.134.

(5) If any portion of the transaction is conducted in any language other than English, the disclosures required under ORS 646A.120 to 646A.134 shall be in the language other than English. This subsection does not apply if any portion of the transaction is conducted through an interpreter supplied by the lessee. [Formerly 646.249]

646A.126 Specific disclosure requirements. For each lease-purchase agreement, the lessor shall disclose in the agreement the following items, as applicable:

(1) Whether the periodic payment is weekly, monthly or otherwise, the dollar amount of each payment and the total number and total dollar amount of all periodic payments necessary to acquire ownership of the property;

(2) A statement that the consumer will not own the property until the consumer has made the total payment necessary to acquire ownership;

(3) A statement advising the consumer whether the consumer is liable for loss or damage to the property, and, if so, the maximum amount for which the consumer is liable;

(4) A brief description of the leased property, sufficient to identify the property to the consumer and the lessor, including an identification number, if applicable, and a statement indicating whether the property is new or used. A statement that indicates new property is used is not a violation of ORS 646A.120 to 646A.134;

(5) A statement of the cash price of the property. Where one agreement involves a lease of two or more items as a set, a statement of the aggregate cash price of all items shall satisfy this requirement;

(6) The total of initial payments paid or required at or before consummation of the agreement or delivery of the property, whichever is later;

(7) A statement that the total amount of payments does not include other charges, such as late payment, default, pickup and reinstatement fees. Fees listed in this subsection shall be disclosed separately in the agreement;

(8) A statement clearly summarizing the terms of the consumer’s option to purchase, including a statement that the consumer has the right to exercise an early purchase option, and the price, formula or method for determining the price at which the property may be so purchased;

(9) A statement identifying the party responsible for maintaining or servicing the property while it is being leased, together with a description of that responsibility, and a statement that if any part of a manufacturer’s express warranty covers the lease property at the time the consumer acquires ownership of the property, it shall be transferred to the consumer, if allowed by the terms of the warranty;

(10) The date of the transaction and the identities of the lessor and consumer;

(11) A statement that the consumer may terminate the agreement without penalty by voluntarily surrendering or returning the property in good repair, reasonable wear and tear excepted, upon expiration of any lease term along with any past due rental payments; and

(12) Notice of the right to reinstate an agreement as provided in ORS 646A.120 to 646A.134. [Formerly 646.251]

646A.128 Provisions prohibited in lease-purchase agreements. A lease-purchase agreement may not contain:

(1) A confession of judgment;

(2) A negotiable instrument;

(3) A security interest or any other claim of a property interest in any goods except those goods delivered by the lessor pursuant to the lease-purchase agreement;

(4) A wage assignment;

(5) A waiver by the consumer of claims or defenses;

(6) A provision authorizing the lessor or a person acting on the lessor’s behalf to enter upon the consumer’s premises without the permission of the consumer or to commit any breach of the peace in the repossession of goods;

(7) A provision requiring the purchase of insurance or liability damage waiver from the lessor for property that is the subject of the lease-purchase agreement;

(8) A provision that mere failure to return property constitutes probable cause for a criminal action;

(9) A provision requiring the lessee to make a payment in addition to regular lease payments in order to acquire ownership of the leased property, or a provision requiring the lessee to make lease payments totaling more than the dollar amount necessary to acquire ownership, as disclosed pursuant to ORS 646A.126;

(10) A provision requiring a late charge or reinstatement fee unless a periodic payment is late more than two days on a weekly agreement, or five days on a monthly agreement;

(11) A late charge or reinstatement fee in excess of $5; or

(12) More than one late charge or reinstatement fee on any one periodic payment regardless of the period of time during which it remains in default. [Formerly 646.253]

646A.130 Reinstatement of lease-purchase agreement by consumer; receipt for each payment. (1) A consumer who fails to make a timely rental payment may reinstate the agreement, without losing any rights or options which exist under the agreement, by the payment of:

(a) All past due rental charges;

(b) If the property has been picked up, the reasonable costs of pickup and redelivery; and

(c) Any applicable late fee, within five days of the renewal date if the consumer pays monthly, or within two days of the renewal date if the consumer pays more frequently than monthly.

(2) In the case of a consumer who has paid less than two-thirds of the total of payments necessary to acquire ownership and where the consumer has returned or voluntarily surrendered the property, other than through judicial process, during the applicable reinstatement period set forth in subsection (1) of this section, the consumer may reinstate the agreement during a period of not less than 21 days after the date of the return of the property.

(3) In the case of a consumer who has paid two-thirds or more of the total of payments necessary to acquire ownership, and where the consumer has returned or voluntarily surrendered the property, other than through judicial process, during the applicable period set forth in subsection (1) of this section, the consumer may reinstate the agreement during a period of not less than 30 days after the date of the return of the property.

(4) Nothing in this section shall prevent a lessor from attempting to repossess property during the reinstatement period, but such a repossession shall not affect the consumer’s right to reinstate. Upon reinstatement, the lessor shall provide the consumer with the same property or substitute property of comparable quality and condition.

(5) A lessor shall provide the consumer with a written receipt for each payment made by cash or money order. [Formerly 646.255]

646A.132 Renegotiation or extension of lease-purchase agreement. (1) A renegotiation shall occur when an existing lease-purchase agreement is satisfied and replaced by a new agreement undertaken by the same lessor and consumer. A renegotiation shall be considered a new agreement requiring new disclosures. A renegotiation shall not include:

(a) The addition or return of property in a multiple item agreement or the substitution of the lease property, if in either case the average payment allocable to a payment period is not changed by more than 10 percent;

(b) A deferral or extension of one or more periodic payments, or portions of a periodic payment;

(d) A lease or agreement involved in a court proceeding.

(2) No disclosures are required for any extension of a lease-purchase agreement. [Formerly 646.257]

646A.134 Disclosures required in advertisement for lease-purchase agreements. (1) If an advertisement for a lease-purchase agreement refers to or states the dollar amount of any payment and the right to acquire ownership for any one specific item, the advertisement shall also clearly and conspicuously state the following items, as applicable:

(a) That the transaction advertised is a lease-purchase agreement;

(b) The total of payments necessary to acquire ownership; and

(2) Any owner or personnel of any medium in which an advertisement appears or through which it is disseminated shall not be liable under this section.

(3) The provisions of subsection (1) of this section shall not apply to an advertisement which does not refer to or state the amount of any payment, or which is published in the yellow pages of a telephone directory or in any similar directory of business.

(4) Every item displayed or offered under a lease-purchase agreement shall have clearly and conspicuously indicated in Arabic numerals, so as to be readable and understandable by visual inspection, each of the following stamped upon or affixed to the item:

(a) The cash price of the item;

(b) The amount of the periodic payment; and

(Collision Damage Waivers in Vehicle Rentals)

646A.140 Definitions for ORS 646A.140 and 646A.142. As used in this section and ORS 646A.142:

(1) “Authorized driver” means:

(a) The person renting the vehicle;

(b) The spouse of the person renting the vehicle, if the spouse is a licensed driver and meets any minimum age requirements contained in the rental agreement;

(c) The employer or coworker of the person renting the vehicle if the employer or coworker is engaged in a business activity with the person renting the vehicle and the employer or coworker meets any minimum age requirements contained in the rental agreement;

(d) Any person driving the vehicle during an emergency; and

(e) Any person expressly listed by the rental company on the rental agreement as an authorized driver.

(2) “Collision damage waiver” means an agreement between the renter and the rental company in which the company waives its right to impose a financial obligation on the renter or authorized driver if the vehicle is returned with physical damage.

(3) “Damage” means any damage or loss to the rented vehicle, including loss of use and any costs and expenses incident to the damage or loss.

(4) “Private passenger automobile” or “vehicle” means a motor vehicle designed primarily for transportation of persons.

(5) “Rental agreement” means any written agreement setting forth the terms and conditions governing the use of a private passenger automobile provided by a rental company.

(6) “Rental company” means any person engaged in the business of renting private passenger automobiles to the public.

(7) “Renter” means any person or organization obtaining the use of a private passenger automobile from a rental company under the terms of a rental agreement. [Formerly 646.857]

646A.142 Rental vehicle collision damage waiver notice. (1) Every auto rental company doing business in the State of Oregon that offers collision damage waivers shall post a sign approved by the Department of Consumer and Business Services which states “OUR CONTRACTS OFFER OPTIONAL COLLISION DAMAGE WAIVERS AT AN ADDITIONAL COST.”

(2)(a) No rental company shall sell or offer to sell to a renter a collision damage waiver as part of a rental agreement unless the renter is provided the following written notice in at least 10-point type:

______________________________________________________________________________

NOTICE: Our contracts offer, for an additional charge, a collision damage waiver to cover your responsibility for damage to the vehicle. Before deciding whether or not to purchase the collision damage waiver, you may wish to determine whether your own vehicle insurance affords you coverage for damage to the rental vehicle and the amount of the deductible under your own insurance coverage. The purchase of this collision damage waiver is not mandatory and may be waived.

______________________________________________________________________________

(b) The notice required by this subsection shall either appear at the top of the rental agreement or shall be on a separate piece of paper attached to the top of the agreement. [Formerly 646.859]

SERVICE CONTRACTS

646A.150 Applicability of ORS 646A.150 to 646A.172. (1) ORS 646A.150 to 646A.172:

(a) Create a legal framework within which service contracts may be sold in this state;

(b) Encourage innovation in the marketing and development of more economical and effective means of providing services under service contracts, while placing the risk of innovation on the obligors rather than on consumers; and

(c) Permit and encourage fair and effective competition among different systems of providing and paying for service contracts.

(2) ORS 646A.150 to 646A.172 do not apply to:

(a) Warranties; or

(b) Maintenance agreements. [Formerly 646.263]

646A.152 Definitions for ORS 646A.150 to 646A.172. As used in ORS 646A.150 to 646A.172:

(1) “Maintenance agreement” means a contract of limited duration that provides for scheduled maintenance only.

(2) “Obligor” means the person who is contractually obligated to the service contract holder to provide service under a service contract and who:

(a) Sold the merchandise covered by the service contract;

(b) Sells merchandise similar to that covered by the service contract; or

(c) Is acting through or with the written consent of the manufacturer, importer or seller of the merchandise covered by the service contract.

(3) “Person” means an individual, partnership, corporation, incorporated or unincorporated association, joint stock company, reciprocal, syndicate or any similar entity or combination of entities acting in concert.

(4) “Service contract” is a contract described in ORS 646A.154.

(5) “Service contract holder” or “contract holder” means a person who is the purchaser or holder of a service contract.

(6) “Service contract seller” means a person who markets, sells or offers to sell a service contract.

(7) “Warranty” means a warranty made solely by the manufacturer, importer or seller of property or services, without charge, that is not negotiated or separated from the sale of the product and is incidental to the sale of the product, and that guarantees indemnity for defective parts, mechanical or electrical breakdown, labor or other remedial measures, such as repair or replacement of the property or repetition of services. [Formerly 646.265]

646A.154 Service contract defined; registration; proof of financial stability; bond; action; rules; applicability of Insurance Code. (1) For the purposes of this section, a service contract is a contract or agreement to perform or indemnify for a specific duration the repair, replacement or maintenance of property for operational or structural failure due to a defect in materials, workmanship or normal wear and tear, with or without additional provision for incidental payment of indemnity under limited circumstances, including but not limited to rental and emergency road service. A service contract may also provide for the repair, replacement or maintenance of property for damage resulting from lightning, power surges or accidental damage from handling. Consideration for a service contract must be stated separately from the price of the consumer product. The term “service contract” does not include insurance policies issued by insurers under the Insurance Code, or maintenance agreements.

(2) An obligor may not issue, sell or offer for sale a service contract in this state unless the obligor has complied with the provisions of this section and ORS 646A.156 and 646A.158.

(3) All obligors of service contracts issued, sold or covering property located in this state shall file a registration with the Director of the Department of Consumer and Business Services on a form, at a fee and at a frequency prescribed by the director pursuant to ORS 646A.168.

(4) An obligor shall keep accurate accounts, books and records concerning transactions involving service contracts.

(5) Except as provided in subsection (6) of this section, to ensure the faithful performance of an obligor’s obligations to its contract holders, each obligor shall provide the director with one of the following as proof of financial stability:

(a) A copy of the obligor’s or, if the obligor’s financial statements are consolidated with those of its parent company, the obligor’s parent company’s most recent Form 10-K filed with the Securities and Exchange Commission which shows a net worth of the obligor or its parent company of at least $100 million provided the Form 10-K was filed with the Securities and Exchange Commission within the last calendar year. If the obligor’s parent company’s Form 10-K is filed to meet the obligor’s financial stability requirement, then the parent company shall agree to guarantee the obligations of the obligor relating to service contracts sold by the obligor in this state.

(b) Evidence of a reimbursement insurance policy described in ORS 742.390 that is obtained by the obligor and issued by an authorized insurer that insures all service contracts issued by the obligor.

(6)(a) An obligor of a home service agreement as defined in ORS 731.164 shall file with the director a surety bond executed to the State of Oregon in the sum of $25,000. The surety bond shall be issued by a surety company authorized to do business in this state. An obligor of a home service agreement is not required to file proof of financial stability under subsection (5) of this section.

(b) The surety bond shall be issued on the condition that the obligor comply with all provisions of ORS 646A.150 to 646A.172 and fully perform on all contracts or agreements entered into.

(c) The surety bond shall be continuous until canceled and shall remain in full force and unimpaired at all times to comply with this section. The surety shall give the director at least 30 days’ written notice by registered or certified mail before the surety cancels or terminates its liability under the bond.

(d) Any person who suffers damage as a result of a violation of any provision of ORS 646A.150 to 646A.172 or any rule adopted by the director pursuant to ORS 646A.150 to 646A.172 shall have a right of action under the bond. An action under the bond may be brought by the state or by any person with a right of action by filing a complaint in a court of competent jurisdiction not later than one year after the surety bond is canceled or terminated. The court may award the prevailing plaintiff reasonable attorney fees and costs in an action under the bond.

(e) The aggregate liability of the surety shall not exceed the principal sum of the bond.

(7) Filing requirements are as follows:

(a) The obligor shall file with the director proof of financial stability or a surety bond as required by subsection (5) or (6) of this section.

(b) The director may adopt rules concerning the procedure for filing the proof of financial stability or the surety bond.

(c) A person may not file or cause to be filed with the director any article, certificate, report, statement, application or any other information required or permitted to be filed under this subsection that the person knows to be false or misleading in any material respect.

(8) Service contract sellers and their employees marketing, selling or offering to sell service contracts for obligors who comply with this section and ORS 646A.156 and 646A.158 are exempt from the requirements of the Insurance Code including, but not limited to, the requirement to belong to the Oregon Insurance Guaranty Association.

(9) Obligors complying with ORS 646A.156 and 646A.158 are not required to comply with the Insurance Code including, but not limited to, the requirement to belong to the Oregon Insurance Guaranty Association.

(10) If a service contract seller is not the same person as the obligor under the service contract, the service contract seller shall remit the agreed-upon consumer purchase price of the service contract to the obligor within 30 days of the sale of such service contract or upon such terms and conditions as may be agreed to in writing between the service contract seller and obligor. [Formerly 646.267]

646A.156 Required contents of service contracts. A service contract issued, sold or offered for sale in this state shall meet the following requirements:

(1) The service contract shall be written in clear, understandable language.

(2) The service contract shall identify the obligor and the service contract seller.

(3) If prior approval of repair work is required, the service contract shall state the procedure for obtaining prior approval and for making a claim, including a toll-free telephone number for claim service and a procedure for obtaining reimbursement for emergency repairs performed outside of normal business hours.

(4) The service contract shall conspicuously state the existence of any deductible amount.

(5) The service contract shall specify the merchandise covered, services to be provided and any limitations, exceptions or exclusions.

(6) The service contract shall state any terms, restrictions or conditions governing the transferability of the service contract by the service contract holder.

(7) The service contract shall state the terms, restrictions or conditions governing termination of the service contract by the service contract holder. [Formerly 646.269]

646A.158 Prohibited conduct. (1) A service contract seller or obligor shall not in a misleading or deceptive manner use in its name, contracts or literature, the words insurance, casualty, guaranty, surety, mutual or any other words descriptive of the insurance, casualty, guaranty, surety or mutual business.

(2) In the offer or sale of any service contract, a person may not:

(a) Make, issue, circulate or cause to be made, issued or circulated, any estimate, illustration, circular or statement misrepresenting the terms of any service contract sold or to be sold or the benefits or advantages therein.

(b) Employ any device, scheme or artifice to defraud.

(c) Obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statement made, in light of the circumstances under which it was made, not misleading.

(d) Engage in any other transaction, practice or course of business which operates as a fraud or deceit upon the service contract holder.

(3) In providing required services under a service contract, a person may not:

(a) Fail to acknowledge and act within a reasonable time upon communications requesting services under a service contract. Unless the service contract provides otherwise, a person shall be deemed to have acted within a reasonable time if the person responds to a communication received from a service contract holder within 30 days of receipt of the communication.

(b) Fail to act in good faith in reviewing a request for services under a service contract and advising the service contract holder whether the request is covered under the terms and conditions of the service contract.

646A.160 Service contract obligor as agent of insurer; indemnification or subrogation rights of insurer. (1) An obligor is considered to be the agent of the insurer that issued the reimbursement insurance policy. If a service contract seller acts as an obligor and enlists other service contract sellers, the service contract seller acting as the obligor shall notify the insurer of the existence and identities of the other service contract sellers.

(2) An insurer that issues a reimbursement insurance policy may seek indemnification or subrogation against a service contract seller if the issuer pays or is obligated to pay the service contract holder sums that the service contract seller was obligated to pay pursuant to the provisions of the service contract or under a contractual agreement. [Formerly 646.273]

646A.162 Investigation of violations; inspection of records; subpoenas; discontinue or desist order; civil penalties. (1) The Director of the Department of Consumer and Business Services may, upon a reasonable belief that a violation of ORS 646A.154, 646A.156 or 646A.158 has occurred, make necessary public and private investigations within or without this state to determine whether any person has violated those provisions.

(2) In connection with any investigation conducted pursuant to subsection (1) of this section, a service contract seller or obligor, upon written request of the director, shall make available to the director its service contract records for inspection and copying. The records that must be made available in accordance with this section shall be only those records necessary to enable the director to reasonably determine compliance with ORS 646A.154, 646A.156 and 646A.158.

(3) For the purpose of an investigation or proceeding under subsection (1) of this section, the director may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence and require the production of books, papers, correspondence, memoranda, agreements or other documents or records that are relevant or material to the inquiry. Each witness who appears before the director under a subpoena shall receive the fees and mileage provided for witnesses in ORS 44.415 (2).

(4) If a person fails to comply with a subpoena issued under subsection (3) of this section, or a party or witness refuses to testify on any matters, the judge of the circuit court for any county, on the application of the director, shall compel obedience by proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from such court or a refusal to testify therein.

(5) The director may, upon a reasonable belief that a person is or is about to be in violation of ORS 646A.154, 646A.156 or 646A.158, issue an order, directed to the person, to discontinue or desist from the violation or threatened violation. The copy of the order forwarded to the person involved shall set forth a statement of the specific charges and the fact that the person may request a hearing within 20 days of the date of mailing. Where a hearing is requested, the director shall set a date for the hearing to be held within 30 days after receipt of the request, and shall give the person involved written notice of the hearing date at least seven days prior thereto. The person requesting the hearing must establish to the satisfaction of the director that the order should not be complied with. The order shall become final 20 days after the date of mailing unless within the 20-day period the person to whom it is directed files with the director a written request for a hearing. To the extent applicable and not inconsistent with the foregoing, the provisions of ORS chapter 183 shall govern the hearing procedure and any judicial review thereof. Where the hearing has been requested, the director’s order shall become final at such time as the right to further hearing or review has expired or been exhausted.

(6) A person who is found to have violated ORS 646A.154, 646A.156 or 646A.158 may be ordered to pay to the General Fund a civil penalty in an amount determined by the director of not more than:

(a) $2,000 for the first violation.

(b) $5,000 for the second violation.

(7) For purposes of this section, a violation consists of a single course of conduct which is determined by the director to be untrue or misleading. [Formerly 646.275]

646A.164 Complaints and investigations confidential; exceptions. (1) Except as provided in subsection (3) of this section, a complaint made to the director against any person regulated by ORS 646A.150 to 646A.172, 742.390 and 742.392, and the record thereof, shall be confidential, and shall not be disclosed or available for public inspection or review. No such complaint, or the record thereof, shall be used in any action, suit or proceeding except to the extent it is essential to the prosecution of apparent violations of ORS 646A.150 to 646A.172, 742.390 and 742.392.

(2) Except as provided in subsection (3) of this section, data gathered pursuant to any investigation by the director shall be confidential, and shall not be disclosed or available for public inspection or review. The data shall not be used in any action, suit or proceeding except to the extent it is essential in the investigation or prosecution of apparent violations of ORS 646A.150 to 646A.172, 742.390 and 742.392.

(3) Notwithstanding subsections (1) and (2) of this section, the director may disclose any complaint and any data gathered pursuant to ORS 646A.150 to 646A.172, 742.390 and 742.392 to any state, federal or local enforcement agency. The recipient agency may use the complaint and data for any official purpose, including the civil enforcement of laws subject to the agency jurisdiction. [Formerly 646.277]

646A.166 Refusal to continue or suspension or revocation of registration. The Director of the Department of Consumer and Business Services may refuse to continue or may suspend or revoke an obligor’s registration if the director finds after a hearing that:

(1) The obligor has intentionally engaged in a pattern or practice of failing to comply with any lawful order of the director relating to a prior violation of ORS 646A.158 (3)(c).

(2) The obligor fails to meet or maintain the financial stability requirements set forth in ORS 646A.154. [Formerly 646.279]

646A.168 Assessment fee; rules; purpose; registration fee. (1) Each obligor that issues a service contract to a resident of this state shall pay an assessment not to exceed $1,000 to the Director of the Department of Consumer and Business Services for the purpose of supporting the legislatively authorized budget of the department for administering ORS 646A.150 to 646A.172, 742.390 and 742.392. The director shall determine by rule the basis of assessment, the amount or rate of assessment and when assessments shall be paid.

(2) The fee prescribed by the director for registration under ORS 646A.154 shall not exceed $200 per obligor per year. [Formerly 646.281]

646A.170 Remedies not exclusive. The application of any remedy under any provision of ORS 646A.150 to 646A.172, 742.390 and 742.392 shall not preclude the application of any other remedy under ORS 646A.150 to 646A.172, 742.390 and 742.392 or any other provision of law. The application of any remedy under any provision of law shall not preclude the application of any remedy under ORS 646A.150 to 646A.172, 742.390 and 742.392. [Formerly 646.283]

646A.172 Rules; exemption of certain obligors. (1) The Director of the Department of Consumer and Business Services may adopt rules necessary to implement ORS 646A.150 to 646A.172.

(2) The director may by rule exempt certain obligors or service contract sellers or specific classes of service contracts that are not otherwise exempt under ORS 646A.150 (2) from any provision of ORS 646A.150 to 646A.172, 742.390 and 742.392. The director may include in the rules substitute requirements on a finding that a particular provision of ORS 646A.150 to 646A.172, 742.390 and 742.392 is not necessary for the protection of the public or that the substitute requirement is reasonably certain to provide equivalent protection to the public. [Formerly 646.285]

CREDIT AND PURCHASING

(Credit and Debit Card Receipts)

646A.200 Definitions for ORS 646A.202 and 646A.204. As used in ORS 646A.202 and 646A.204:

(1) “Credit card” has the meaning given that term in ORS 646A.212.

(2) “Debit card” has the meaning given “debit instrument” in 15 U.S.C. 1693n. [Formerly 646.886]

646A.202 Payment processing systems. A person may not sell, lease or rent a payment processing system that provides a customer receipt that shows more information about a customer than the customer’s name and five digits of the customer’s credit or debit card number. [Formerly 646.887]

646A.204 Customer information. (1) In a credit or debit card transaction with a customer, a person may not create a customer receipt that shows more information about a customer than the customer’s name and five digits of the customer’s credit or debit card number.

(2) A person that creates or retains a copy of a receipt containing more information about a customer than the customer’s name and five digits of the customer’s credit or debit card number shall shred, incinerate or otherwise destroy the copy on or before the sooner of:

(a) The date the image of the copy is transferred onto microfilm or microfiche; or

(b) Thirty-six months after the date of the transaction that created the copy. [Formerly 646.888]

646A.206 Rules. The Attorney General may adopt rules under ORS chapter 183 to carry out the provisions of ORS 646A.200, 646A.202 and 646A.204. [Formerly 646.889]

(Numbers, Expiration Dates or Personal Information in Credit or Debit Card Transactions)

646A.210 Requiring credit card number as condition for accepting check or share draft prohibited; exceptions. (1) A person shall not require as a condition of acceptance of a check or share draft, or as a means of identification, that the person presenting the check or share draft provide a credit card number or expiration date, or both, unless the credit is issued by the person requiring the information.

(2) Subsection (1) of this section shall not prohibit a person from:

(a) Requesting a person presenting a check or share draft to display a credit card as indicia of creditworthiness and financial responsibility or as a source of additional identification;

(b) Recording the type of credit card and the issuer of the credit card displayed by the person under paragraph (a) of this subsection;

(c) Requesting or receiving a credit card number or expiration date, or both, and recording the number or date, or both, in lieu of a security deposit to assure payment in event of default, loss, damage or other occurrence;

(d) Recording a credit card number or expiration date, or both, as a condition for acceptance of a check or share draft where the card issuer guarantees checks or share drafts presented by the cardholder upon the condition that the person to whom the check is presented records the card number or expiration date, or both, on the check or share draft;

(e) Requesting and recording the name, address, motor vehicle operator license number or state identification card number and telephone number of a person offering payment by check; or

(f) Verifying the signature, name and expiration date on a credit card.

(3) This section does not require acceptance of a check or share draft whether or not a credit card is presented.

(4) For purposes of this section, “person” means any individual, corporation, partnership or association. [Formerly 646.892]

646A.212 “Credit card” defined. As used in ORS 646A.210 and 646A.214, “credit card” has the meaning given that term under the federal Consumer Credit Protection Act (P.L. 90-321, 82 Stat. 146, 15 U.S.C. 1602). [Formerly 646.893]

646A.214 Verification of identity in credit or debit card transactions. (1) A merchant that accepts a credit card or debit card for a transaction may require that the credit card or debit card holder provide personal information, other than the personal information that appears on the face of the credit card or debit card, for the purposes of verification of the card holder’s identity. The merchant may not write the information on the credit card or debit card transaction form.

(2) This section may not be construed to prevent a merchant from requesting and keeping in written form information necessary for shipping, delivery or installation of purchased goods or services, or for warranty when the information is provided voluntarily by a credit card or debit card holder.

(3) Any provision in a contract between a merchant and a credit card or debit card issuer, financial institution or other person that prohibits the merchant from verifying the identity of a person who presents a credit card or debit card in payment for goods or services by requiring or requesting identification is contrary to public policy and void.

(4) Nothing in this section may be construed to:

(a) Compel a merchant to verify the identity of a person who presents a credit card or debit card in payment for goods or services; or

(b) Interfere with the ability of a merchant to make and enforce policies regarding verification of the identity of a person who presents a credit card or debit card in payment for goods or services.

(5) As used in this section, “merchant” means a person who, in the ordinary course of that person’s business, permits persons to present credit cards or debit cards in payment for goods or services. [Formerly 646.894]

(Credit and Charge Card Solicitation Disclosure Requirements)

646A.220 Credit card solicitation; required disclosure; definitions. (1) Every solicitation for the issuance of a credit card shall disclose the following information concerning the credit card account:

(a) The annual percentage rate or rates applicable to the credit card account. If the rate or rates are variable, the solicitation shall disclose that fact and shall further disclose either the rate or rates on a specified date or the index from which the rate or rates are determined.

(b) Any minimum, fixed, transaction, activity or similar charge that could be imposed in connection with any use of the credit card.

(c) Any annual or periodic membership or participation fee that may be imposed for the availability, issuance or renewal of the credit card.

(d) Whether or not any time period is provided within which any credit extended through the use of the credit card may be repaid without incurring a finance charge, and a description of any such time period.

(2) As used in this section:

(a) “Card issuer,” “credit card,” “credit,” “annual percentage rate” and “finance charge” have the meanings given those terms under the federal Consumer Credit Protection Act (P.L. 90-321, 82 Stat. 146, 15 U.S.C. 1601).

(b) “Reasonable time” means the period beginning at the time of publication of a magazine, newspaper or other publication and ending at the time of the next publication of the magazine, newspaper or other publication, but in no case shall the period exceed 90 days following the date of publication.

(c) “Solicitation” means printed material primarily offering to issue a credit card including printed material mailed directly to a person by name that contains an application for or an offer to issue a credit card in the person’s name, application materials available at the credit card issuer’s place of business or other locations or application materials, printed advertisements or other printed information or materials contained in a magazine, newspaper or other publication which shall be considered current at the time of publication and for a reasonable time thereafter. “Solicitation” does not include material which only refers to credit cards as one of the services provided by the issuer nor does it include offers made by radio or television or through a catalog. “Solicitation” does not include an incidental reference to a credit card in the printed material. [Formerly 646.895]

646A.222 Charge card solicitation; required disclosure; definitions. (1) A charge card solicitation shall disclose clearly and conspicuously the annual fees and other charges, if any, applicable to the issuance or use of the charge card.

(2) As used in this section:

(a) “Charge card” means any card, plate or other credit device under which the issuer of the charge card extends credit to the card holder that is not subject to a finance charge and the card holder does not have automatic access to credit repayable in installments.

(c) “Solicitation” means printed material primarily offering to issue a charge card including printed material mailed directly to a person by name that contains an application for or an offer to issue a charge card in the person’s name, application materials available at the charge card issuer’s place of business or other locations or application materials, printed advertisements or other printed information or materials contained in a magazine, newspaper or other publication which shall be considered current at the time of publication and for a reasonable time thereafter. “Solicitation” does not include material which only refers to charge cards as one of the services provided by the issuer nor does it include offers made by radio or television or through a catalog. “Solicitation” does not include an incidental reference to a charge card in the printed material. [Formerly 646.897]

(Enforcement)

646A.230 Action by Attorney General or district attorney; civil penalties. (1)(a) The Attorney General or a district attorney may bring an action in the name of the state against a person to restrain and prevent a violation of ORS 646A.202, 646A.204, 646A.220 or 646A.222.

(b) The Attorney General or a district attorney may in the name of the state seek and obtain a civil penalty from a person who violates an order or injunction issued pursuant to this subsection.

(2)(a) A person who violates an order or injunction issued pursuant to subsection (1) of this section shall forfeit and pay a civil penalty of not more than $1,000 per violation. The circuit court issuing the order or injunction retains jurisdiction of the action to consider a request for a civil penalty.

(b) In an action brought by a prosecuting attorney under this section, the court may award the prevailing party, in addition to any other relief provided by law, reasonable attorney fees at trial and on appeal. [Formerly 646.899]

646A.232 Effect of compliance with federal law. A person who is in compliance with the requirements of the Fair Credit and Charge Card Disclosure Act, (Public Law 100-583), shall also be considered in compliance with the requirements of ORS 646A.220 and 646A.222. [Formerly 646.901]

(Extension of Credit)

646A.240 Treatment of child support obligations by creditor in applications for extensions of credit. In evaluating applications for extensions of credit, a creditor may not:

(1) Treat an applicant’s obligation to pay child support more adversely than the creditor treats or would treat another obligation for the same amount, terms and duration as the child support obligation; or

(2) Deny an application solely because the applicant used the applicant’s business address instead of the applicant’s residential address if a law of this state or a local government ordinance permits the applicant to use a business address in lieu of a residential address. [Formerly 646.861; 2009 c.183 §1]

646A.242 “Creditor” defined. As used in ORS 646A.240 to 646A.244, “creditor” means a person who, in the ordinary course of the person’s business, regularly permits debtors to defer payment of their debts, or to incur debt and defer the payment thereof, and in either case, to pay the same with a finance charge or in more than four installments. [Formerly 646.863]

646A.244 Cause of action for violation of ORS 646A.240; injunction; attorney fees; defenses. (1) Except as provided in subsection (2) of this section, a person who is adversely affected by a creditor’s violation of ORS 646A.240 shall have a cause of action to recover compensatory damages against the creditor and may also apply to a court for an injunction to prevent the creditor’s further violation of ORS 646A.240. If the damages are awarded, or an injunction granted, the person shall be entitled to reasonable attorney fees at trial and on appeal, as determined by the court in addition to costs and necessary disbursements.

(2) A creditor shall have no liability for compensatory damages, attorney fees or otherwise and no injunction shall issue:

(a) Where the creditor shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adopted to avoid any such error; or

(b) Where in violating ORS 646A.240, the creditor shows by a preponderance of evidence that it acted in good faith, in conformity with any statute, law, ordinance, rule, regulation, administrative interpretation or judicial determination then applicable to the transaction in question. [Formerly 646.865]

646A.250 [Formerly 646.380; repealed by 2009 c.604 §27]

646A.252 [Formerly 646.382; repealed by 2009 c.604 §27]

646A.254 [Formerly 646.384; repealed by 2009 c.604 §27]

646A.256 [Formerly 646.386; repealed by 2009 c.604 §27]

646A.258 [Formerly 646.388; repealed by 2009 c.604 §27]

646A.260 [Formerly 646.390; repealed by 2009 c.604 §27]

646A.262 [Formerly 646.392; repealed by 2009 c.604 §27]

646A.264 [Formerly 646.394; repealed by 2009 c.604 §27]

646A.266 [Formerly 646.396; repealed by 2009 c.604 §27]

646A.268 [Formerly 646.397; repealed by 2009 c.604 §27]

646A.270 [Formerly 646.398; repealed by 2009 c.604 §27]

(Gift Cards)

646A.274 Definitions for ORS 646A.276 and 646A.278. As used in ORS 646A.276 and 646A.278, “gift card” means a prefunded record evidencing a promise that the issuer will provide goods or services to the owner of the record in the amount shown in the record. “Gift card” does not include prepaid telephone calling cards, prepaid commercial mobile radio services as defined in 47 C.F.R. 20.3 or any gift card usable with more than one seller of goods or services. [2007 c.772 §1]

646A.276 Sale of gift card that expires, declines in value or includes fee. Except as provided in ORS 646A.278, a person may not sell a gift card:

(1) That has an expiration date;

(2) That has a face value that declines as a result of the passage of time or the lack of use of the card; or

(3) That has a fee related to the card, including, but not limited to, an inactivity fee, a maintenance fee or a service fee. [2007 c.772 §2]

646A.278 Requirements for sale of gift card that expires. A person may sell a gift card that has an expiration date if:

(1) The gift card bears, in at least 10-point type, the words “EXPIRES ON” or “EXPIRATION DATE” followed by the date on which the card expires;

(2) The person sells the gift card at a cost below the face value of the card; and

(3) The gift card does not expire until at least 30 days after the date of sale. [2007 c.772 §3]

(Simulated Invoices)

646A.280 Definitions for ORS 646A.280 to 646A.290. As used in ORS 646A.280 to 646A.290:

(1) “Invoice” means a document containing an itemized list of previously ordered goods or services and an amount or amounts of money owed by the recipient of the document.

(2) “Recipient” means the person to whom an invoice or simulated invoice is uttered.

(3) “Simulated invoice” means a document containing an itemized list of unordered goods or services and an amount or amounts of money to be paid by the recipient of the document.

(4) “Utter” has the meaning given in ORS 165.002. [Formerly 646.291]

646A.282 Simulated invoices prohibited. It is unlawful for any person to utter a simulated invoice if:

(1) A reasonable recipient could, under all the circumstances of its receipt, mistake the simulated invoice for an invoice; or

(2) The person knows or reasonably should know that a recipient could mistake the simulated invoice for an invoice. [Formerly 646.293]

646A.284 Cause of action by Attorney General; judgment; attorney fees. (1) The Attorney General shall have a cause of action against any person who violates ORS 646A.282.

(2) If the Attorney General prevails, the court shall enter judgment against the defendant for:

(a) Each simulated invoice uttered in this state, for the greater of:

(A) Three times the amount stated in the simulated invoice; or

(B) $500;

(b) Such orders or judgments as may be necessary to restore to any person any moneys of which the person was deprived by any conduct in violation of ORS 646A.282; and

(3) The court may award reasonable attorney fees to the prevailing party in an action under this section.

(4) All sums of money received by the Department of Justice under a judgment, settlement or compromise in an action or potential action brought under this section, shall, upon receipt, be deposited with the State Treasurer to the credit of the Department of Justice Protection and Education Revolving Account established pursuant to ORS 180.095. [Formerly 646.296; 2009 c.820 §3]

646A.286 Cause of action by private party; judgment; attorney fees. (1) A recipient of a simulated invoice who has suffered any ascertainable loss as a result shall have a cause of action against any person who violates ORS 646A.282.

(2) If the recipient prevails, the court shall enter judgment against the defendant for:

(a) The greater of:

(A) Three times the amount stated in the simulated invoice received; or

(B) $500 for each simulated invoice received;

(b) Such orders or judgments as may be necessary to restore to the recipient any moneys of which the recipient was deprived by any conduct in violation of ORS 646A.282; and

(3) The court may award reasonable attorney fees to the prevailing party in an action under this section. [Formerly 646.298]

646A.288 Presumptions in cause of action brought under ORS 646A.284 or 646A.286. In any action brought under ORS 646A.284 or 646A.286, the following presumptions apply:

(1) A simulated invoice that has been paid by five or more persons could be mistaken for an invoice by a reasonable recipient.

(2) A person knows that a simulated invoice uttered simultaneously with a copy of a publication or portion of a publication previously ordered by the recipient from a person other than the person uttering the simulated invoice could be mistaken for an invoice by a reasonable recipient. [Formerly 646.300]

646A.290 Construction; other remedies. (1) The provisions of ORS 646A.280 to 646A.290 shall be liberally construed to effectuate its remedial purposes.

(2) The remedy provided by ORS 646A.280 to 646A.290 is in addition to any other remedy, civil or criminal, that may be available under any other provision of law. Claims based on remedies available under other provisions of law may be joined in an action under ORS 646A.280 to 646A.290 or may be asserted in a separate action. [Formerly 646.302]

REPURCHASING

(Repurchase of Farm Implements by Supplier From Retailer)

646A.300 Definitions for ORS 646A.300 to 646A.322. As used in ORS 646A.300 to 646A.322:

(1) “Catalog” includes catalogs published in any medium, including electronic catalogs.

(2) “Change in competitive circumstances” means a material detrimental effect on a retailer’s ability to compete with another retailer who sells the same brand of farm implements.

(3) “Current model” means a model listed in the supplier’s current sales manual or any supplements to the manual.

(4) “Current net price” means:

(a) The price of parts or farm implements listed in the supplier’s price list or catalog in effect at the time the contract is canceled or discontinued, less any applicable trade, volume or cash discounts, or when the retailer made a warranty claim.

(b) For superseded parts, the price listed in the supplier’s price list or catalog when the retailer purchased the parts.

(5) “Current signs” means the principal outdoor signs that:

(a) The supplier requires a retailer to obtain;

(b) Identify the supplier; and

(6) “Dealership” means the location from which a retailer buys, sells, leases, trades, stores, takes on consignment or in any other manner deals in farm implements.

(7) “Distributor” means a person who sells or distributes new farm implements to a retailer.

(8) “Farm implements” means:

(a) Any vehicle designed or adapted and used exclusively for agricultural operations and only incidentally operated or used upon the highways;

(b) Auxiliary items, such as trailers, used with vehicles designed or adapted for agricultural operations;

(c) Other consumer products for agricultural purposes, including lawn and garden equipment powered by an engine, supplied by the supplier to the retailer pursuant to a retailer agreement;

(d) Attachments and accessories used in the planting, cultivating, irrigating, harvesting and marketing of agricultural, horticultural or livestock products; and

(e) Outdoor power equipment, including, but not limited to, self-propelled equipment used to maintain lawns and gardens or used in landscape, turf or golf course maintenance.

(9) “F.O.B.” has the meaning given that term in ORS 72.3190.

(10) “Inventory” means farm implements, machinery and repair parts.

(11) “Manufacturer” means a person who manufactures or assembles new or unused farm implements.

(12) “Net cost” means the price the retailer actually paid for the merchandise to the supplier.

(13) “Retailer” means any person engaged in the business of retailing farm implements, machinery or repair parts in this state.

(14) “Retailer agreement” means an agreement between a supplier and a retailer that provides for the rights and obligations of the parties with respect to purchase or sale of farm implements.

(15) “Specialized tool” means a tool that:

(a) The supplier requires a retailer to obtain; and

(b) Is unique to the diagnosis or repair of the supplier’s farm implements or machinery.

(16) “Supplier” means:

(a) A wholesaler, manufacturer, manufacturer’s representative or distributor.

(b) A successor in interest of a manufacturer, manufacturer’s representative or distributor, including, but not limited to:

(A) A purchaser of assets or shares of stock;

(B) A corporation or entity resulting from merger, liquidation or reorganization; or

(17) “Warranty claim” means a claim for payment submitted by a retailer to a supplier for service or parts provided to a customer under a warranty issued by the supplier. [Formerly 646.415]

646A.302 Application of ORS 646A.300 to 646A.322 to successor in interest or assignee of supplier. The obligations of a supplier under ORS 646A.300 to 646A.322 apply to the supplier’s successor in interest or assignee. A successor in interest includes a purchaser of assets or shares, a surviving corporation or other entity resulting from a merger or liquidation, a receiver and a trustee of the original supplier. [Formerly 646.419]

646A.304 Payment for farm implements, parts, software, tools and signs upon termination of retailer agreement. (1) If a retailer agreement is terminated, canceled or discontinued, unless the retailer elects to keep the farm implements, machinery and repair parts under a contractual right to do so, the supplier shall pay the retailer for the farm implements, machinery and repair parts or, if the retailer owes any sums to the supplier, credit the cost of the farm implements, machinery and repair parts to the retailer’s account. The payment or credit shall be as follows:

(a) The payment or the credit for the unused complete farm implements and machinery in new condition shall be in a sum equal to 100 percent of the net cost of all complete farm implements and machinery that are current models and that have been purchased by the retailer from the supplier within the 24 months immediately preceding notice of intent to cancel or discontinue the retailer agreement. The payment or credit shall include the transportation charges to the retailer and from the retailer to the supplier, if the charges have been paid by the retailer or invoiced to the retailer’s account by the supplier, and a reasonable reimbursement for services performed in connection with assembly or predelivery inspection of the implements or machinery. The supplier assumes ownership of the farm implements and machinery F.O.B. the dealership.

(b) The payment or credit for equipment used for demonstration or rental and that is in new condition shall equal the depreciated value of the equipment to which the supplier and retailer have agreed.

(c)(A) The payment or credit for repair parts shall be a sum equal to 95 percent of the current net prices of the repair parts, including superseded parts, plus the charges for transportation from the retailer to the destination designated by the supplier that the retailer paid or the supplier invoiced to the retailer’s account. The supplier assumes ownership of the repair parts F.O.B. the dealership.

(B) This paragraph applies to parts purchased by the retailer from the supplier and held by the retailer on or after the date of the cancellation or discontinuance of the retailer agreement.

(i) The supplier identified as not returnable when the retailer ordered the parts.

(ii) The retailer purchased in a set of multiple parts, unless the set is complete and in resalable condition.

(iii) The retailer failed to return after being offered a reasonable opportunity to return the repair part at a price not less than 100 percent of the net price of the repair part as listed in the then current price list or catalog.

(iv) Have a limited storage life or are otherwise subject to deterioration, including but not limited to rubber items, gaskets and batteries and repair parts in broken or damaged packages.

(v) Are single repair parts priced as a set of two or more items.

(vi) Are not resalable as new parts without new packaging or reconditioning because of their condition.

(D) The supplier shall also pay the retailer or credit to the retailer’s account a sum equal to five percent of the current net price of all parts returned for the handling, packing and loading of the parts, unless the supplier elects to list the inventory and perform packing and loading of the parts itself.

(d) Upon the payment or allowance of credit to the retailer’s account of the sum under this subsection, the title to the farm implements, farm machinery or repair parts shall pass to the supplier making the payment or allowing the credit and the supplier shall be entitled to the possession of the farm implements, machinery or repair parts.

(2)(a) If a retailer agreement is terminated, canceled or discontinued, the supplier shall, upon request of the retailer, pay the retailer for:

(A) Computer and communications hardware that:

(i) The supplier required the retailer to purchase within the preceding five years; and

(ii) The retailer possesses on the date of the agreement’s termination, cancellation or discontinuation.

(B) Computer software that:

(i) The supplier required the retailer to purchase from the supplier; and

(ii) The retailer used exclusively to support the retailer’s dealings with the supplier.

(b) If the retailer owes any sums to the supplier, the supplier may credit the cost of the hardware and software to the retailer’s account.

(c) The payment or credit shall be the net cost of the hardware and software, less 20 percent per year that the retailer possessed the hardware and software.

(d) This subsection does not apply if the retailer exercises a contractual right to keep the hardware or software.

(3)(a) If a retailer agreement is terminated, canceled or discontinued, the supplier shall pay the retailer for the retailer’s specialized tools.

(b) If the retailer owes any sums to the supplier, the supplier may credit the cost of the specialized tools to the retailer’s account.

(c)(A) If a tool is new and unused and used for the supplier’s current models, the payment or credit shall be the net cost of the tool.

(B) If a tool is not new and unused and used for the supplier’s current models, the payment or credit shall be the net cost of the tool, less 20 percent per year that the retailer possessed the tool.

(4)(a) If a retailer agreement is terminated, canceled or discontinued, the supplier shall pay the retailer for the retailer’s current signs.

(b) If the retailer owes any sums to the supplier, the supplier may credit the cost of the signs to the retailer’s account.

(c) The payment or credit shall be the net cost of the sign, less 20 percent per year that the retailer possessed the sign.

(5) A supplier shall provide all payments or allowances due under this section within 90 calendar days of the retailer’s return of the farm implements, machinery, repair parts, computer and communications hardware, computer software, specialized tools or current signs. A supplier who does not provide a payment or allowance within 90 calendar days of the retailer’s return of the farm implements, machinery, repair parts, computer and communications hardware, computer software, specialized tools or current signs shall pay the retailer interest of 18 percent per annum on the past due amount until paid.

(6) This section supplements any retailer agreement between the retailer and the supplier covering the return of farm implements, machinery, repair parts, computer and communications hardware, computer software, specialized tools or current signs. The retailer may elect to pursue either the retailer’s remedy under the retailer agreement or the remedy provided under this section. An election by the retailer to pursue the remedy under the retailer agreement does not bar the retailer’s right to the remedy provided under this section as to those farm implements, machinery, repair parts, computer and communications hardware, computer software, specialized tools or current signs not affected by the retailer agreement. This section does not affect the right of a supplier to charge back to the retailer’s account amounts previously paid or credited as a discount incident to the retailer’s purchase of goods.

(7) This section does not apply to farm implements, machinery, repair parts, computer and communications hardware, computer software, specialized tools or current signs that a retailer acquired from a source other than the supplier. [Formerly 646.425]

Note: Section 13 (1), chapter 466, Oregon Laws 2003, provides:

Sec. 13. (1) The amendments to ORS 646.425 [renumbered 646A.304 in 2007] by section 2 of this 2003 Act apply to retail agreements that:

(a) Are entered into on or after the effective date of this 2003 Act [January 1, 2004].

(b) Are entered into before the effective date of this 2003 Act and:

(A) Do not state a date for termination, cancellation or discontinuation; and

(B) Are terminated, canceled or discontinued after the effective date of this 2003 Act. [2003 c.466 §13(1)]

646A.306 Repurchase of inventory by supplier; effect of new retailer agreement. (1) A supplier shall repurchase the inventory of a retailer, as if the supplier had terminated the retailer agreement, as follows:

(a) Upon the death of a retailer whose business is owned as a tenancy by the entirety, at the option of the spouse or the heir or heirs of the retailer.

(b) Upon the death of a stockholder of a corporation operating as a retailer, at the option of the heir or heirs of the stockholder and upon the consent of the board of directors.

(2) The surviving spouse or the heir or heirs may exercise the option under this section not later than one year from the date of the death of the retailer or the stockholder.

(3) Nothing in ORS 646A.300 to 646A.322 requires the repurchase of inventory by the supplier:

(a) If the supplier and the corporation acting as a retailer enter into a new retailer agreement to operate the retail dealership.

(b) If the supplier and the surviving spouse or the heir or heirs of the retailer enter into a new retailer agreement to operate the retail dealership. [Formerly 646.435]

646A.308 Civil action for supplier’s failure to pay; venue. (1) If, upon the cancellation of a retailer agreement by the retailer or the supplier, the supplier fails to make payment as required by ORS 646A.304 or 646A.306, the supplier shall be liable in a civil action to be brought by the retailer or by the retailer’s spouse, heir or heirs for the payments required under ORS 646A.304 or 646A.306.

(2) A person who brings an action under this section must commence the action in the county in which the principal place of business of the retailer is located. [Formerly 646.445]

646A.310 Prohibited conduct by supplier. (1) A supplier may not:

(a) Coerce or compel any retailer to:

(A) Order any farm implements or parts.

(B) Accept delivery of farm implements with special features or accessories not included in the base list price of the farm implements as publicly advertised by the supplier.

(C) Enter into any agreement, whether written or oral, supplementary to an existing retailer agreement with the supplier, unless the supplementary agreement or amendment to the agreement is applicable to all other similarly situated retailers in the state.

(b) Refuse to deliver in reasonable quantities and within a reasonable time after receipt of the retailer’s order, to any retailer having a retailer agreement for the retail sale of new equipment sold or distributed by the supplier, equipment covered by the retailer agreement represented by the supplier to be available for immediate delivery.

(A) As a condition of renewal or extension of a retailer agreement that the retailer complete substantial renovation of the retailer’s place of business, or acquire new or additional space to serve as the retailer’s place of business, unless the supplier provides at least one year’s written notice of the condition which states all grounds supporting the condition.

(B) A retailer to complete a renovation or acquisition in less than a reasonable time.

(d) Discriminate among similarly situated retailers in this state with respect to the prices charged for equipment of like grade and quality sold to them by the supplier.

(e) Unreasonably withhold consent for a retailer to change the capital structure of the retailer’s business or the means by which the retailer finances the business.

(f) Prevent or attempt to prevent any retailer or any officer, member, partner or stockholder of any retailer from selling or transferring any interest to any other party or parties.

(g) Require a retailer to assent to a release, assignment, novation, waiver or estoppel which would relieve any person from liability imposed by ORS 646A.300 to 646A.322.

(h) Withhold consent to a transfer of an interest in a dealership unless the retailer’s area of responsibility or trade area does not afford sufficient sales potential to reasonably support a retailer.

(i) Unreasonably withhold consent to the sale, transfer or assignment of the retailer’s interest or power of management or control in the retailer’s business.

(j) In the event of the death or incapacity of the retailer or the principal owner of the retailer’s business, unreasonably withhold consent to the transfer of the retailer’s interest in the business to a person who meets the reasonable financial, business experience and character standards of the supplier.

(2)(a) Subsection (1)(a)(A) of this section does not apply if a law requires a retailer to order farm implements or parts.

(b) Subsection (1)(a)(B) of this section does not apply if:

(A) A law requires a supplier to supply farm implements with special features;

(B) The special features or accessories are safety features; or

(c)(A) As used in this paragraph, “act of nature” means an unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight.

(B) Notwithstanding subsection (1)(b) of this section, a supplier may refuse to deliver equipment if the refusal is due to:

(i) Prudent and reasonable restrictions on extension of credit by the supplier to the retailer;

(ii) An act of nature;

(iii) A work stoppage or delay due to a strike or labor difficulty;

(iv) A bona fide shortage of materials;

(v) A freight embargo; or

(vi) Any other cause over which the supplier has no control.

(C) Subparagraph (B) of this paragraph applies only if the supplier bases delivery on ordering histories with priority given to the sequence in which the orders are received.

(d) Subsection (1)(d) of this section does not prohibit:

(A) A supplier from using differentials resulting from the differing quantities in which equipment is sold or delivered.

(B) A retailer from offering a lower price in order to meet an equally low price of a competitor or the services or facilities furnished by a competitor.

(e) Subsection (1)(e) of this section applies only if:

(A) The retailer meets the reasonable capital requirements imposed by the supplier;

(B) The retailer agreed to the capital requirements; or

(C) The change by the retailer does not result in a change of the controlling interest in the executive management or board of directors, or of any guarantors of the retailer.

(f) If a supplier does not accept a sale, transfer or assignment, the supplier shall provide written notice of the supplier’s objection and specific reasons for withholding consent.

(g) Notwithstanding subsection (1)(f) of this section, a retailer may not sell, transfer or assign the retailer’s interest or power of management or control without the written consent of the supplier.

(h) Subsection (1)(j) of this section does not apply if the retailer and supplier agreed to rights of succession.

(i) Notwithstanding subsection (1)(f), (h), (i) and (j) of this section, a supplier may withhold consent to a transfer of interest in a retailer if, with due regard to regional market conditions and distribution economies, the retailer’s area of responsibility or trade does not afford sufficient sales potential to reasonably support a retailer. [Formerly 646.447]

646A.312 Termination, cancellation or failure to renew retailer agreement; notice; good cause. (1) As used in this section:

(a) “Good cause” means a retailer’s:

(A) Failing to comply with a term of a retail agreement that is the same as a term in the supplier’s agreements with similarly situated retailers, including failure to meet marketing criteria;

(B) Transferring a controlling ownership interest in the retailer’s business without the supplier’s consent;

(C) Making a material misrepresentation or falsification of a record, contract, report or other document that the retailer has submitted to the supplier;

(D) Filing a voluntary petition in bankruptcy;

(E) Being placed involuntarily in bankruptcy and not discharging the bankruptcy within 60 days after the filing;

(F) Becoming insolvent;

(G) Being placed in a receivership;

(H) Pleading guilty to, being convicted of or being imprisoned for a felony;

(I) Failing to operate in the normal course of business for seven consecutive business days or terminating business;

(J) Relocating or establishing a new or additional place or places of business without the supplier’s consent;

(K) Failing to satisfy a payment obligation as it comes due and payable to the supplier;

(L) Failing to promptly account to the supplier for any proceeds of the sale of farm implements or otherwise failing to hold the proceeds in trust for the benefit of the supplier;

(M) Consistently engaging in business practices that are detrimental to the consumer or supplier, including, but not limited to, excessive pricing, misleading advertising or failure to provide service and replacement parts or to perform warranty obligations;

(N) Inadequately representing the supplier, causing lack of performance in sales, service or warranty areas, and failing to achieve satisfactory market penetration at levels consistent with similarly situated retailers based on available documented information;

(O) Consistently failing to meet building and housekeeping requirements; or

(P) Consistently failing to comply with the licensing laws that apply to the supplier’s products and services.

(b) “Similarly situated retailer” means a retailer:

(A) In a similar geographic area;

(B) With similar sales volumes; and

(2) With good cause, a supplier, directly or through an officer, agent or employee, may terminate, cancel, fail to renew or substantially change the competitive circumstances of a retailer agreement. The termination, cancellation, nonrenewal or change becomes effective upon notice to the retailer. The notice shall state the reasons constituting good cause for the termination, cancellation, nonrenewal or change.

(3)(a) Except as provided in subsection (2) of this section, a supplier shall give a retailer 90 calendar days’ written notice of the supplier’s intent to terminate, cancel or fail to renew a retailer agreement or change the competitive circumstances of a retailer agreement.

(b) The notice shall:

(A) State the reasons for termination, cancellation, nonrenewal or change; and

(B) Provide that the retailer has 60 calendar days in which to cure a claimed deficiency.

(d) If the retailer fails to cure the deficiency within 60 calendar days, the termination, cancellation, failure to renew or change in competitive circumstances becomes effective on the date specified in the notice.

(4)(a) Notwithstanding subsection (3) of this section, a supplier shall give a retailer one year’s written notice of the retailer’s failure to meet reasonable marketing criteria.

(b) The notice shall:

(A) State the reasonable marketing criteria that the retailer has failed to meet; and

(B) Provide the retailer one year in which to meet the criteria.

(c)(A) If the retailer fails to meet the criteria within the year, the supplier may give notice of the termination, cancellation, failure to renew the retail agreement or change to the retail agreement.

(B) A termination, cancellation, failure to renew or change under this paragraph is effective 180 calendar days after the supplier gives notice. [Formerly 646.449]

646A.314 New or relocated dealership; notice; area of responsibility. (1) If a supplier enters into an agreement to establish a new retailer or dealership or to relocate a retailer or dealership, and the agreement assigns an area of responsibility, the supplier must give written notice of the agreement by certified mail to any retailer or dealership within an assigned area of responsibility that is within or contiguous to the area of the new or relocated retailer or dealership.

(2) If a supplier enters into an agreement to establish a new retailer or dealership or to relocate a retailer or dealership, and the agreement does not assign an area of responsibility, the supplier must give written notice of the agreement by certified mail to any retailer or dealership within a 75-mile radius of the new or relocated retailer or dealership.

(3) A notice required by this section shall contain:

(a) The new location of the retailer or dealership;

(b) The date that the retailer or dealership will commence business at the new location; and

(c)(A) If the agreement assigns an area of responsibility, the name and address of retailers and dealerships with assigned areas of responsibility that are within or contiguous to the area of the new or relocated retailer or dealership; or

(B) If the agreement does not assign an area of responsibility, the name and address of retailers and dealerships within a 75-mile radius of the new or relocated retailer or dealership. [Formerly 646.452]

646A.316 Warranty claims; payment; time for completion. Unless otherwise agreed:

(1) On a warranty claim, a supplier shall provide reasonable compensation for the retailer’s costs, including but not limited to:

(a) Diagnostic services;

(b) Repair services;

(d) Labor.

(2) For labor on warranty service, a supplier may not pay a retailer an hourly rate that is less than the rate that the retailer charges for nonwarranty service.

(3) For repair parts on warranty service, a supplier may not pay a retailer less than the amount that the retailer paid for the parts plus a reasonable allowance for the shipping and handling of the parts.

(4) A supplier must allow a reasonable time for a retailer to complete warranty service. [Formerly 646.453; 2009 c.11 §82]

646A.318 Warranty claims; processing. (1) A supplier shall approve or disapprove a warranty claim in writing within 30 calendar days of the supplier’s receipt of the claim.

(2) If a supplier does not approve or disapprove a warranty claim in writing within 30 calendar days of the supplier’s receipt of the claim, the supplier shall pay the claim within 60 calendar days of receipt of the claim.

(3) A supplier that approves a warranty claim shall pay the claim within 30 calendar days of the claim’s approval.

(4) A supplier that disapproves a warranty claim shall, in the writing required by subsection (1) of this section, notify the retailer of the reasons for the disapproval.

(5) If a supplier disapproves a warranty claim because the retailer failed to comply with procedures for submitting the claim prescribed by the retailer agreement, the retailer may resubmit the claim within 30 calendar days of the retailer’s receipt of the supplier’s disapproval.

(6) A supplier may not disapprove a warranty claim as untimely if the claim covers service or parts provided while a retailer agreement was in effect.

(7)(a) For one year after payment of a warranty claim, the supplier may audit records that support the claim.

(b) A supplier may not audit a record that supports a claim more than one year after paying the claim unless an audit has disclosed that the retailer submitted a false claim.

(A) Adjust a claim paid in error;

(B) Require a retailer to return payment made on a false claim; and

(C) If the retailer owes an amount to the supplier, credit the amount of a claim to the retailer’s account. [Formerly 646.454]

646A.320 Retailer’s improvements to products. Unless otherwise agreed:

(1) If a supplier requires a retailer to improve the safety of farm implements or machinery, the supplier shall reimburse the retailer for the costs of parts, labor and transportation that the retailer incurred to make the improvement.

(2) If a supplier requires a retailer to improve farm implements or machinery for reasons other than safety, the supplier shall reimburse the retailer for the costs of parts and labor that the retailer incurred to make the improvement.

(3) For labor to improve farm implements or machinery, a supplier may not pay a retailer an hourly rate that is less than rate that the retailer charges for like services.

(4) For parts to improve farm implements or machinery, a supplier may not pay a retailer less than the amount that the retailer paid for the parts plus a reasonable allowance for the shipping and handling of the parts. [Formerly 646.456]

646A.322 Remedies; arbitration; cause of action; attorney fees; injunctive relief. (1)(a) Any party to a retailer agreement aggrieved by the conduct of the other party to the agreement under ORS 646A.310, 646A.312, 646A.314, 646A.316, 646A.318 or 646A.320 may seek arbitration of the issues under ORS 36.600 to 36.740. Unless the parties agree to different arbitration rules, the arbitration shall be conducted pursuant to the commercial arbitration rules of the American Arbitration Association. If the parties agree, the arbitration shall be the parties’ only remedy and the findings and conclusions of the arbitrator or panel of arbitrators shall be binding upon both parties.

(b) The arbitrator or arbitrators may award the prevailing party:

(A) The costs of witness fees and other fees in the case;

(B) Reasonable attorney fees; and

(2) Notwithstanding subsection (1) of this section, any retailer has a civil cause of action in circuit court against a supplier for damages sustained by the retailer as a consequence of the supplier’s violation of ORS 646A.310, 646A.312, 646A.314, 646A.316, 646A.318 or 646A.320, together with:

(a) The actual costs of the action;

(b) Reasonable attorney fees; and

(3) A supplier bears the burden of proving that a retailer’s area of responsibility or trade area does not afford sufficient sales potential to reasonably support the retailer. The supplier’s proof must be in writing.

(4) The remedies set forth in this section are not exclusive and are in addition to any other remedies permitted by law, unless the parties have chosen binding arbitration under subsection (1) of this section. [Formerly 646.459]

(Repurchase of Motor Vehicles)

646A.325 Repurchase of motor vehicle by manufacturer; notice to dealer; contents of notice; notice to prospective buyer. (1) The manufacturer of a motor vehicle who repurchases the vehicle for any reason shall inform any vehicle dealer to whom the manufacturer subsequently delivers the vehicle for resale that the vehicle has been repurchased by the manufacturer. If the reason for the repurchase was failure or inability to conform the vehicle to express warranties under the provisions of ORS 646A.400 to 646A.418 or any similar law of another jurisdiction, the manufacturer shall also inform the dealer of that fact.

(2) A dealer who has been given information required by subsection (1) of this section shall give the information, in writing, to any prospective buyer of the vehicle.

(3) An owner of a motor vehicle who has been given information as required by subsection (1) or (2) of this section shall give the information, in writing, to any prospective buyer of the vehicle.

(4) As used in this section and ORS 646A.327, “motor vehicle” has the meaning given in ORS 646A.400. [Formerly 646.874]

646A.327 Attorney fees for action under ORS 646A.325. The court may award reasonable attorney fees to the prevailing party in an action against a person who has a duty to disclose information under ORS 646A.325. [Formerly 646.876]

MAILINGS AND DELIVERIES

(Mail Agents)

646A.340 Definitions for ORS 646A.340 to 646A.348. As used in ORS 646A.340 to 646A.348:

(1) “Mail agent” means any person, sole proprietorship, partnership, corporation or other entity who owns, manages, rents or operates one or more mailboxes, as defined in this section, for receipt of United States mail or materials received from or delivered by a private express carrier, for any person, sole proprietorship, partnership, corporation or other entity not the mail agent.

(2) “Mailbox” means any physical location or receptacle where United States mail or materials received from or delivered by a private express carrier are received, stored or sorted, including letter boxes.

(3) “Tenant” means any person, sole proprietorship, partnership, corporation or other entity who contracts with or otherwise causes a mail agent to receive, store, sort, hold or forward any United States mail or materials received from or delivered by any private express carrier on the tenant’s behalf. [Formerly 646.221]

646A.342 Prohibited conduct; required verifications and notice. (1) A mail agent shall not contract with a tenant to receive United States mail or materials received from or delivered by a private express carrier on the tenant’s behalf if the mail agent knows or should know that the tenant has provided a false name, title or address to the mail agent.

(2) Prior to contracting with a tenant to receive United States mail or materials received from or delivered by a private express carrier on the tenant’s behalf, the mail agent shall independently verify:

(a) The identity of the tenant.

(b) The residence address of the tenant if the tenant is an individual or the business address of the tenant if the tenant is a business entity.

(d) In the case of an entity using an assumed business name, that the name has been registered for use in the State of Oregon.

(3) The mail agent shall accept mail or materials received from or delivered by a private express carrier on behalf of the tenant only if the mail is, or the materials received from or delivered by a private express carrier are addressed to the tenant. The mail agent shall not deposit United States mail or materials received from or delivered by a private express carrier in any mailbox unless the addressee has rented a mailbox from the mail agent.

(4) Whenever a mail agent has reason to believe that a tenant is using a mailbox to escape identification, the mail agent shall immediately notify the Attorney General and the United States Postal Inspector. [Formerly 646.225]

646A.344 Bond or letter of credit; action; exceptions. (1) Except as provided in subsection (5) of this section, a mail agent shall maintain:

(a) A surety bond in the sum of $10,000 executed by the mail agent as obligor, together with a surety company authorized to do business in this state as surety; or

(b) An irrevocable letter of credit issued by an insured institution as defined in ORS 706.008 in the amount of $10,000.

(2) The bond or letter of credit must:

(a) Be executed to the State of Oregon and for the use of the state and of any person who may have a cause of action against the obligor of the bond or the letter of credit for a violation of ORS 646A.342 or for damages under ORS 646A.346.

(b) Provide that the obligor will comply with ORS 646A.342 and will pay to the state and to any person the moneys that may become due or owing to the state or to the person from the obligor for a violation of ORS 646A.342.

(3) The Attorney General shall approve the form of the bond or letter of credit.

(4) If a person recovers a judgment against a mail agent for a violation of ORS 646A.342 and execution issued upon the judgment is returned unsatisfied in whole or in part, the person may maintain an action upon the bond or letter of credit.

(5) Subsection (1) of this section does not apply to a mail agent whose activity as a mail agent consists solely of receiving, storing, sorting, holding or forwarding United States mail or materials received from or delivered by a private express carrier for tenants of the mail agent if:

(a) The tenant is also renting or leasing from the mail agent an office, store, residential unit or other space or unit intended for human occupancy, and the space or unit is located on the same premises as the mailbox; and

(b) The mail agent services that the mail agent is providing to the tenant are incidental to and a part of the landlord-tenant relationship that exists between the mail agent and the tenant with respect to the leased space or unit. [Formerly 646.229]

646A.346 Damages. Upon proof by a preponderance of evidence that a mail agent has failed to satisfy any of the mail agent’s duties set forth in ORS 646A.342, the mail agent shall be liable for actual damages caused to any person who sent United States mail or materials received from or delivered by a private express carrier addressed to a fictitious person at any tenant’s mailbox and who is damaged because the person who sent the United States mail or materials received from or delivered by a private express carrier is unable to identify the tenant. A mail agent’s liability under this section shall not exceed $1,000 per occurrence. [Formerly 646.235]

646A.348 Action by Attorney General; civil penalty; injunction; damages; attorney fees and costs. (1) The Attorney General may bring an action in the name of the state against any mail agent for violation of ORS 646A.342 or 646A.344. Upon proof by a preponderance of the evidence of a violation of ORS 646A.342 or 646A.344, a mail agent shall forfeit and pay a civil penalty of not more than $1,000 for an initial violation. For a second or subsequent violation, the mail agent shall forfeit and pay a civil penalty of not more than $5,000 for each violation.

(2) The Attorney General may bring an action in the name of the state against any mail agent or other person or entity to restrain or prevent any violation of ORS 646A.342 or 646A.344.

(3) The Attorney General may bring an action on behalf of a person to obtain the damages caused to the person by a mail agent’s violation of ORS 646A.342 or 646A.344.

(4) The court may award reasonable attorney fees and costs of investigation, preparation and litigation to the Attorney General if the Attorney General prevails in an action under this section. The court may award reasonable attorney fees and costs of investigation, preparation and litigation to a defendant who prevails in an action under this section if the court determines that the Attorney General had no objectively reasonable basis for asserting the claim or no reasonable basis for appealing an adverse decision of the trial court. [Formerly 646.240]

(Delivery of Hazardous Materials)

646A.350 Delivery of unrequested hazardous substances prohibited. No person shall deliver, or cause to be delivered, any hazardous substance, as defined in ORS 453.005 (7), to any residential premises without the prior consent of any occupant of such premises. [Formerly 646.870]

646A.352 Penalty. Violation of ORS 646A.350 is a Class A misdemeanor. [Formerly 646.992]

(Other Mailings or Deliveries)

646A.360 Unsolicited facsimile machine transmissions. (1) If a person receives on a facsimile machine any unsolicited and unwanted advertising material for the sale of any realty, goods or services, the person may give the sender of such material written notice to discontinue further such transmissions. No person who has received such a discontinuance notice shall use a facsimile machine to transmit unsolicited advertising material for the sale of realty, goods or services to the person who gave the discontinuance notice for a period of one calendar year from the date the notice was given.

(2) As used in this section, “facsimile machine” means a machine that electronically transmits or receives facsimiles of documents through connection with a telephone network. [Formerly 646.872]

646A.362 Exclusion of name from sweepstakes promotion mailing list; written request; rules. (1) As used in this section:

(a) “Exclusion request” means a written request to be excluded from a sweepstakes promotion mailing list or to be placed on a list of persons to whom sweepstakes promotions may not be mailed.

(b) “Sweepstakes promotion” has the meaning given that term in ORS 124.005.

(2) Any person who receives a sweepstakes promotion, or a combination of sweepstakes promotions from the same service, in the United States mail, regardless of the identities of the originators of the sweepstakes promotion, may send a written exclusion request to the originator of any sweepstakes promotion.

(3) The exclusion request shall be mailed to the address to which the recipient would have sent a payment for any goods or services promoted in the sweepstakes promotion had the recipient ordered the goods or services instead of mailing an exclusion request.

(4) An originator of a sweepstakes promotion who receives an exclusion request shall exclude the requestor’s name from the originator’s sweepstakes promotion mailing list or shall place the requestor’s name on a list of persons to whom sweepstakes promotions may not be mailed.

(5) The Attorney General shall adopt rules necessary to implement this section.

(6) It is an affirmative defense to a claim or charge of violating subsection (4) of this section that the originator of the sweepstakes promotion had, at the time of the violation, implemented reasonable practices or procedures for preventing a violation. [Formerly 646.879]

646A.365 Check, draft or payment instrument creating obligation for payment. A person may not mail or cause to be sent a check, draft or other payment instrument that, when deposited or cashed, obligates the depositor or payee thereafter to make any payment. This section does not apply to an extension of credit or an offer to lend money. [2007 c.304 §1]

AUTOMATIC DIALING AND ANNOUNCING DEVICES

646A.370 Definitions for ORS 646A.370 to 646A.374. As used in ORS 646A.370 to 646A.374:

(1) “Automatic dialing and announcing device” means an automated device that selects and dials telephone numbers and that, working alone or in conjunction with another device, disseminates a prerecorded or synthesized voice message to the telephone number called.

(2) “Call” means an attempt made to contact or a contact made with a subscriber by means of a telephone or telephone line.

(3) “Caller” means a person that attempts to contact or that contacts a subscriber by using a telephone or telephone line.

(4) “Caller identification service” means a telephone service that permits subscribers to see a caller’s telephone number before answering the telephone.

(5) “Established business relationship” means a previous transaction or series of transactions between a caller and a subscriber that occurred within the 18 months preceding a call.

(6) “Subscriber” means an individual who has obtained residential or wireless telephone services from a telecommunications provider, or a person who resides with the individual. [2007 c.823 §1]

646A.372 Limits on usage of automatic dialing and announcing device. (1) A caller may not use an automatic dialing and announcing device in order to call a subscriber unless the device is designed and operated so as to disconnect within 10 seconds after the subscriber terminates the call.

(2) A caller may not use an automatic dialing and announcing device that dials telephone numbers randomly or sequentially unless the range of telephone numbers from which the device chooses the number to dial does not include numbers for:

(a) Fire protection, law enforcement or other emergency agencies;

(b) Hospital and health care facilities, physician’s offices, poison control centers or suicide prevention or domestic violence counseling services; and

(c) Subscribers who appear on a list compiled for the purpose of informing potential callers that the subscriber does not want to receive telephone solicitations.

(3) Subsection (2)(c) of this section does not apply to a caller who:

(a) Has an established business relationship with the subscriber;

(b) Is subject to regulation under the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq.;

(d) Is a representative of a school district or school if the subscriber is an employee of the school district, a student or the student’s parent, guardian or other family member.

(4) A caller who uses an automatic dialing and announcing device may use the device to call a subscriber only between the hours of 9 a.m. and 9 p.m. [2007 c.823 §2]

646A.374 Prohibited actions. (1) A caller who uses an automatic dialing and announcing device in order to call a subscriber may not misrepresent or falsify, either in speaking with the subscriber or in the prerecorded or synthesized voice message disseminated during the call:

(a) The caller’s identity and the identity of any person on behalf of whom the caller is making the call;

(b) The telephone number from which the caller is making the call;

(d) The purpose for which the caller is making the call.

(2) A caller may not intentionally alter, misrepresent or falsify the information that a caller identification service would ordinarily provide to a subscriber who uses such a service.

(3) A person who provides a caller identification service is not subject to civil liability for a caller’s violation of this section. [2007 c.823 §3]

646A.376 Enforcement; civil penalty. Violation of ORS 646A.372 or 646A.374 is an unlawful trade practice subject to enforcement under ORS 646.632. Notwithstanding the provisions of ORS 646.642, a civil penalty imposed for a violation of ORS 646A.372 or 646A.374 may not exceed $5,000. [2007 c.823 §4]

WARRANTY REGULATION AND ENFORCEMENT

(Enforcement of Express Warranties on New Motor Vehicles)

646A.400 Definitions for ORS 646A.400 to 646A.418. As used in ORS 646A.400 to 646A.418:

(1) “Collateral charge” means a charge, fee or cost to the consumer related to the sale or lease of a motor vehicle, such as:

(a) A sales, property or use tax;

(b) A license, registration or title fee;

(d) A prepayment penalty;

(e) A charge for undercoating, rust-proofing or factory or dealer installed options; and

(f) The cost of an aftermarket item purchased within 20 days after delivery of the motor vehicle.

(2) “Consumer” means:

(a) The purchaser or lessee, other than for purposes of resale, of a new motor vehicle normally used for personal, family or household purposes;

(b) Any person to whom a new motor vehicle used for personal, family or household purposes is transferred for the same purposes during the duration of an express warranty applicable to such motor vehicle; and

(3)(a) “Motor home” means a motor vehicle that is a new or demonstrator vehicular unit built on, or permanently attached to, a self-propelled motor vehicle chassis, chassis cab or van that becomes an integral part of the completed vehicle, and that is designed to provide temporary living quarters for recreational, camping or travel use.

(b) “Motor home” does not include a trailer, camper, van or vehicle manufactured by an entity that primarily manufactures motor vehicles other than motor homes as defined in this subsection.

(c) “Motor home” does not include “living facility components,” which means those items designed, used or maintained primarily for the living quarters portion of the motor home, including but not limited to the flooring, plumbing fixtures, appliances, water heater, fabrics, door and furniture hardware, lighting fixtures, generators, roof heating and air conditioning units, cabinets, countertops, furniture and audio-visual equipment.

(4) “Motor vehicle” means a passenger motor vehicle as defined in ORS 801.360 that is purchased in this state or is purchased outside this state but registered in this state. [Formerly 646.315; 2009 c.448 §1]

646A.402 Availability of remedy. The remedy under the provisions of ORS 646A.400 to 646A.418 is available to a consumer if:

(1) A new motor vehicle does not conform to applicable manufacturer’s express warranties;

(2) The consumer reports each nonconformity to the manufacturer, the manufacturer’s agent or the manufacturer’s authorized dealer, for the purpose of repair or correction, during the two-year period following the date of original delivery of the motor vehicle to the consumer or during the period ending on the date on which the mileage on the motor vehicle reaches 24,000 miles, whichever period ends first; and

(3) The manufacturer has received direct written notification from or on behalf of the consumer and has had an opportunity to correct the alleged defect. “Notification” under this subsection includes, but is not limited to, a request by the consumer for an informal dispute settlement procedure under ORS 646A.408. [Formerly 646.325; 2009 c.448 §2]

646A.404 Consumer’s remedies; manufacturer’s affirmative defenses. (1) If the manufacturer or agents or authorized dealers of the manufacturer are unable to conform the motor vehicle to an applicable manufacturer’s express warranty by repairing or correcting a defect or condition that substantially impairs the use, market value or safety of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer shall:

(a) Replace the motor vehicle with a new motor vehicle; or

(b) Accept return of the vehicle from the consumer and refund to the consumer the full purchase or lease price and collateral charges paid, less a reasonable allowance for the consumer’s use of the motor vehicle. In lieu of refunding, as part of the collateral charges paid, the cost of an aftermarket item purchased within 20 days after delivery of the motor vehicle, the manufacturer may remove the aftermarket item from the motor vehicle, if the aftermarket item can be removed from the motor vehicle without damage, and return the aftermarket item to the consumer.

(2) Refunds must be made to the consumer and lienholder, if any, as the interests of the consumer and lienholder may appear.

(3)(a) As used in this section, “reasonable allowance for the consumer’s use of the motor vehicle” means:

(A) For a motor vehicle that is not a motorcycle or a motor home, an amount of money equivalent to the motor vehicle mileage as described in paragraph (b) of this subsection, multiplied by the combined amount of the cash price or lease price of the motor vehicle and the amount of any collateral charges paid by the consumer, and divided by 120,000.

(B) For a motorcycle, an amount of money equivalent to the motor vehicle mileage as described in paragraph (b) of this subsection, multiplied by the combined amount of the cash price or lease price of the motorcycle and the amount of any collateral charges paid by the consumer, and divided by 25,000.

(C) For a motor home, an amount of money equivalent to the motor vehicle mileage as described in paragraph (b) of this subsection, multiplied by the combined amount of the cash price or lease price of the motor home and the amount of any collateral charges paid by the consumer, and divided by 90,000.

(b) The motor vehicle mileage for the purposes of the calculation described in paragraph (a) of this subsection is the motor vehicle’s mileage at the time the manufacturer takes an action described in subsection (1) of this section, less 10 miles for mileage that the motor vehicle traveled during any period in which the consumer did not have use of the motor vehicle because the manufacturer or an agent or authorized dealer of the manufacturer was repairing the motor vehicle.

(4) It is an affirmative defense to a claim under ORS 646A.400 to 646A.418 that:

(a) An alleged nonconformity does not substantially impair such use, market value or safety; or

(b) A nonconformity is the result of abuse, neglect or unauthorized modifications or alterations of the motor vehicle. [Formerly 646.335; 2009 c.448 §3]

646A.405 Manufacturer action under ORS 646A.404; request to Department of Transportation; notice to buyer; unlawful practice; rules. (1) A manufacturer that takes an action with respect to a motor vehicle under ORS 646A.404 (1)(a) or (b) shall request the Department of Transportation to:

(a) Title the motor vehicle in the manufacturer’s name; and

(b) Inscribe on the certificate of title for the motor vehicle and in the department’s records concerning the motor vehicle the notation “Lemon Law Buyback.”

(2) A person that acquires a motor vehicle in order to sell, lease or otherwise transfer the motor vehicle and that knows or should have known that the manufacturer took an action with respect to the motor vehicle under ORS 646A.404 (1)(a) or (b) or that the certificate of title for the motor vehicle is inscribed with the notation specified in subsection (1) of this section, before selling, leasing or otherwise transferring the motor vehicle shall:

(a) Provide the buyer, lessee or transferee with a notice that states:

______________________________________________________________________________

This vehicle was repurchased by its manufacturer in accordance with Oregon’s consumer warranty law because of a defect in the vehicle. The title to this vehicle has been permanently inscribed with the notation “Lemon Law Buyback.”

______________________________________________________________________________

(b) Obtain the signature of the buyer, lessee or transferee on the notice in a space provided for that purpose under a statement in which the buyer, lessee or transferee acknowledges receiving and understanding the notice.

(3) Failure to comply with the requirements of subsection (1) or (2) of this section is an unlawful practice under ORS 646.608 and a person that fails to comply with the requirements is subject to the causes of action and remedies provided in ORS 646.632 and 646.638.

(4) The Director of Transportation may adopt rules to prescribe the form and content of the notice required under this section and to require the disclosure of other information the director deems necessary to inform a buyer, lessee or transferee of the condition of a motor vehicle that is subject to the provisions of this section or information that is otherwise material to a sale, lease or transfer of the motor vehicle. [2009 c.448 §10]

646A.406 Presumption of reasonable attempt to conform; extension of time for repairs; notice to manufacturer. (1) It is presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable manufacturer’s express warranties if, during the two-year period following the date of original delivery of the motor vehicle to a consumer or during the period ending on the date on which the mileage on the motor vehicle reaches 24,000 miles, whichever period ends first:

(a) The manufacturer or an agent or authorized dealer of the manufacturer has subjected the nonconformity to repair or correction three or more times and has had an opportunity to cure the defect alleged, but the nonconformity continues to exist;

(b) The motor vehicle is out of service by reason of repair or correction for a cumulative total of 30 or more calendar days or 60 or more calendar days if the vehicle is a motor home; or

(c) The manufacturer or an agent or authorized dealer of the manufacturer has subjected a nonconformity that is likely to cause death or serious bodily injury to repair or correction at least one time and has made a final attempt to repair or correct the nonconformity, but the nonconformity continues to exist.

(2) A repair or correction for purposes of subsection (1) of this section includes a repair that must take place after the expiration of the earlier of either period.

(3) The period ending on the date on which the mileage on the motor vehicle reaches 24,000 miles, the two-year period and the 30-day period shall be extended by any period of time during which repair services are not available to the consumer because of a war, invasion, strike, fire, flood or other natural disaster.