Make sure that the other party is aware of your terms before the contract comes into existence, and that you have evidence of this.
As a supplier, for example, you could ask all new customers to complete an account opening form which includes a copy of your terms and conditions. You could also ask the customer to sign a statement confirming that they have read and agree to your terms and conditions.
A common mistake made by suppliers is to rely on having a copy of their terms and conditions on the back of their invoices. This is not usually effective, as the invoice is seen after the contract has been agreed - although it can help if there have been a series of transactions between supplier and customer (a 'course of dealing'), so that the customer knows what the supplier's standard terms are from previous transactions. In those circumstances, the supplier may be able to argue that the customer is bound by them in later transactions.
Suppliers should ensure that all pre-contract documentation including quotation forms, sales proposals, brochures and quotations, material contained on the supplier's website, acknowledgement or confirmation of order forms and delivery notes contain the supplier's standard terms. Where the standard terms are on the reverse of eg the order form, appropriate wording must be used on the order form to incorporate the terms set out on the reverse.
