For Engel & Volkers deliveries, where is the place of performance considered to be?
Engel_Volkers Franchise · 2025 FDDAnswer from 2025 FDD Document
serve the right to require payment for any shipment hereunder in advance, or satisfactory security, if the financial performance or credit worthiness of Purchaser is unsatisfactory to us. Such security includes, but is not limited to, execution by Purchaser of a promissory note, security agreement, financing statement and/or personal guarantee. If Purchaser fails to make payment in accordance with the terms of this agreement or otherwise fails to comply with any provision hereof, we may, at our option (and in addition to other remedies), cancel any unshipped portion of this order; in such event, Purchaser will remain liable for all unpaid accounts.
9. Place of performance and jurisdiction
For sales by any of the ENGEL & VÖLKERS Group of companies, the place of performance for delivery is the seller's registered head office in Hamburg, Germany. As far as these Terms of Sale and Supply do not contain specific regulations which provide for the contrary, the United Nations Convention on Contracts for the International Sales of Goods (1980) – CISG shall apply in addition. The place of performance for payment (also for bills of exchange and checks) and the place of jurisdiction for any disputes is Hamburg, Germany alone. The contractual relationship shall be subject to the laws of the Federal Republic of Germany.
For sales by Franchisor, this agreement and all rights and obligations hereunder, including matters of construction, validity and performance, shall be governed by the internal laws of the State of New York, U.S.A., including the Uniform Commercial Code as enacted in that jurisdiction, without giving effect to the principles of conflicts of law thereof.
Source: Item 22 — CONTRACTS (FDD page 88)
What This Means (2025 FDD)
According to Engel & Volkers' 2025 Franchise Disclosure Document, the place of performance for deliveries depends on who is making the sale. For sales made by any of the ENGEL & VÖLKERS Group companies, the place of performance for delivery is the seller's registered head office in Hamburg, Germany. The place of performance for payment and the place of jurisdiction for any disputes is also Hamburg, Germany. The contractual relationship is subject to the laws of the Federal Republic of Germany.
However, for sales made directly by the Franchisor, the agreement is governed by the internal laws of the State of New York, U.S.A., including the Uniform Commercial Code. The Purchaser agrees that Engel & Volkers or its affiliates may institute any action arising out of this agreement in the Supreme Court of the State of New York, New York County, or the United States District Court for the Southern District of New York. The Purchaser submits to the jurisdiction of such courts and waives any objection to the jurisdiction or venue of any such court.
In regards to Engel & Volkers deliveries, the place of performance is the place of shipment. Any associated additional costs, which are incurred in the event of any subsequent alterations to the destination at the request of the Purchaser, shall be borne by the Purchaser. The shipment risk shall in all cases be transferred to the Purchaser when the goods are made available at the place of shipment, even insofar as Engel & Volkers bears the costs of shipment as a result of a special agreement. Transport insurance, in particular for the shipment of dangerous goods, shall be taken out only at the request and for the account of the Purchaser.