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Shall versus will: A sales-related reason to use the latter

Contract drafting maven Ken Adams writes again about shall versus will in contracts. I agree with Ken about using shall, at least when you have two parties who are committed to the deal. On the other hand, I’ve drafted a lot of commercial contracts for enterprise-software companies and other vendors where the customer isn’t completely ‘sold’ yet.

(In the case of enterprise-software deals, the customer often isn’t psychologically ‘sold’ until the software has been installed and rolled out and its users are so comfortable with the software that they wouldn’t want to give it up.)

In those cases, I like to soften most mandatory language by using will. EXAMPLE: Instead of, Licensee shall renew maintenance annually for five years, I might say, Licensee will renew maintenance annually for five years.

The use of will strikes me as being a bit more deferential to the customer, and respectful of the reality that even on a whim the customer can walk away at any time before signature. I think it helps to reinforce the impression, especially in the mind of the customer’s contract reviewer, that the customer will be undertaking the obligation voluntarily, as opposed to somehow being forced into it. (I know, every contract obligation is undertaken voluntarily, but we’re talking sales psychology here.)

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