The Customer’s attention is particularly drawn to the provisions of clauses 4.4, 5.3, 6.3, 7.3 and 8.3 (Contract Extended Term), and clause 14. (Limitation on ARCL’s Liability)

1.INTERPRETATION

1.1 Definitions. In these Conditions, the following definitions apply:

Business Day a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.Carrier the relevant third party telecommunications operator or network service provider.

Charges the applicable charges payable by the Customer for the supply of any Services and/or Equipment in accordance with clause 10.

Commencement Date means the date on which ARCL shall start to provide the Service which shall mean in the case of:

  • (a) Maintenance Services the Installation Date or where ARCL has not contracted with the client to install Equipment in connection with the Maintenance Services the date specified as the Commencement Date for the Maintenance Services;
  • (b) Fixed Network Services the Handover Date in respect of those Fixed Network Services;
  • (c) Data Services the relevant Handover Date in respect of those Data Services;
  • (d) IT Support Services the date specified as the Commencement Date in the Order Form; and
  • (e) Push to Talk Mobile Services the Handover Date in respect of those Mobile Services.

Conditions these terms and conditions as amended from time to time in accordance with clause 18.7.

Connection Date means in the case of the provision of Data Services the date when the Carrier commences the provisioning of Data Services to the Customer on behalf of ARCL.

Contract the contract between ARCL and the Customer for the supply of any Services and/or goods (including where appropriate Equipment) in accordance with these Conditions, the Order and any Service Specific Conditions.

Contract Date the date on which a Contract between the Customer and ARCL is formed and comes into existence as determined pursuant to the provisions of clause 2.2

Customer the person or firm specified as such in the Order Form who contracts to purchase Services from ARCL.

Customer Default has the meaning given to it in clause 9.3.

Data Services the data services to be provided by ARCL to the Customer as described in the Order, together with such other data services that ARCL agrees to supply to the Customer from time to time.

Data Services Contract where applicable, the Contract for the supply of Data Services.

Delivery has the meaning given to in clause 4.2.

Equipment the equipment as set out in the Order Form or Hire Agreement as the case may be.

Estimated Installation Date the date on which ARCL estimates that the Equipment will be installed, as advised by ARCL to the Customer.

Extended Term in relation to:

  • (a) a Contract for the supply of Fixed Network Services has the meaning given to it in clause 5.3 or if applicable, clause 5.4; and
  • (b) a Contract for the supply of Data Services has the meaning given to it in clause 6.3 or if applicable, clause 6.4;
  • (c) a Contract for the supply of Maintenance Services has the meaning given to it in clause 4.4 or if applicable, clause 4.5; and
  • (d) a Contract for the supply of the IT Support Services has the meaning given to it in clause 7.3 or if applicable, clause 7.4.

Fixed Network Services the voice services to be provided by ARCL to the Customer as specified in the Order Form.

Fixed Network Services Contract where applicable, the Contract for the supply of Fixed Network Services.

ARCL AIRACOM LIMITED registered in England and Wales with company number 07675722 of 3rd Floor, 207 Regent Street, London, England, W1B 3HH, UK

ARCL Customer Transfer Preference Policy as set out at www.airacom.com as varied from time to time.

Handover Date means

  • (a) in the case of the provision of Fixed Network Services the date when the Fixed Network Services are available for use by the Customer with ARCL as the supplier of the Fixed Network Services.
  • (b) in the case of Data Services the date when the Data Services are available for use by the Customer with ARCL as the supplier of the Data Services.
  • (c) in the case of Mobile Services the date when the Mobile Services are available for use by the Customer with ARCL as the supplier of the Mobile Services.

Hosted Sub Licence a sub licence granted by ARCL to the Customer for a hosted product for use in connection with Fixed Network Services.

Installation Date the date on which the Equipment is installed.

Installation Services the services relating to the installation by ARCL (or its duly authorised agents) of the Equipment (where applicable).

IT Support Services the IT support services to be provided by ARCL to the Customer as specified in the Order.

IT Support Services Contract where applicable, the Contract for the supply of IT Support Services.

Maintenance Services the maintenance services to be provided by ARCL to the Customer as described in the Order, together with such other maintenance services that ARCL agrees to supply to the Customer from time to time.

Maintenance Services Contract where applicable, the Contract for the supply of Maintenance Services.

Minimum Term the minimum contract term that applies to the Maintenance Services, the Fixed Network Services, the Data Services, the IT Support Services and/or the Mobile Services as the case may be shall unless a different minimum term is specified for any such Service in the Service Specific Conditions section of the Order Form be the period of three years commencing on the Commencement Date.

Mobile Services the mobile services to be provided by ARCL to the Customer as specified in the Order.

Mobile Services Contract where applicable, the Contract for the supply of Mobile Services.

Notes Section the section of the order form marked “Notes Section”.

OFCOM the Office of Communications or any equivalent successor body.

Order the Customer’s order for Services as set out in the Order Form; such Order being subject to these Conditions.

Order Form the document which sets out amongst other things the Services which the Customer would like ARCL to provide to it and certain details in respect thereof including when read in conjunction with these Conditions the basis on which the charges for providing the Services will be calculated. The Order Form shall be prepared by ARCL and sent to the Customer for signature by or on behalf of the Customer and re-turned to ARCL. The Order Form may be prepared, sent, signed or returned either electronically or physically.

Personal Data has the meaning given to it in the Data Protection Act 1998 or, after 25 May 2018 the General Data Protection Regulation.

Services the services to be supplied by ARCL to the Customer being any or all of the Installation Services, Maintenance Services, Fixed Network Services, Data Services, IT Support Services and/or Mobile Services, as the case may be, and Service shall be construed accordingly but shall exclude the provision of DNS servers and mail servers.

Service Specific Conditions any policies, terms or procedures that apply to and shall be incorporated into the Contract, as specified in the notes section of the Order Form. Site: the Customer’s place of business as specified in the Order Form where any Services are to be provided or carried out and/or ( where applicable) Equipment is to be delivered and any Installation is to take place, as specified in the Order Form.

Small Business Customer a Customer identified on the Order Form as not being a communications provider and who has 10 or fewer individuals working for that Customer (whether as employees, volunteers or otherwise).

Specification the description or specification of the relevant Services and/or Equipment provided in writing by ARCL to the Customer as set out in the Order Form.

Tariff The standard tariff as set out at www.airacom.com and as varied in the Notes Section of the Order Form for Fixed Network Services, Data Services and the IT Support Services as attached to the Order Form and as amended or notified to the Customer from time to time.

VOIP Voice Over Internet Protocol being the use of the Internet as the transmission medium for telephone calls by digital means (rather than the traditional telephone system based on copper wires carrying analogue data). 1.2 Construction. In these Conditions, the following rules apply:

  • (a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
  • (b) a reference to a party includes its personal representatives, successors or permitted assigns;
  • (c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
  • (d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
  • (e) a reference to writing or written includes e-mails but excludes faxes.

2.BASIS OF CONTRACT

2.1 The sending of the Order Form by ARCL to the customer constitutes an offer by ARCL to the Customer to provide services and/or Equipment in accordance with these conditions, the Order and any service specific conditions (“the Offer”). The Offer may be withdrawn at any point by ARCL prior to it being accepted by the Customer.

2.2 The offer shall be accepted and the Contract shall be formed and come into existence at the point when ARCL receives the Order Form, either electronically or physically, duly signed (either electronically or physically) by or on behalf of the Customer at which point and on which date the Contract shall come into existence (subject where applicable to clauses 4.1, 5.6, 6.6 and 7.5). If ARCL has not received the Order Form duly signed for or on behalf of the Customer within [12 months] from the date on which it is sent to by ARCL to the Customer the offer to contract with the Customer shall be deemed to have been withdrawn unless otherwise agreed between ARCL and the Customer.

2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of ARCL which is not set out in the Order Form, the Service Specific Conditions or the terms (or incorporated by reference in any of them).

2.4 Any samples, drawings, descriptive matter or advertising issued by ARCL, and any descriptions or illustrations contained in ARCL’ catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the services described in them. They shall not form part of the Contract nor have any contractual force.

2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. In the event of any conflict between these Conditions and any Service Specific Conditions, the Service Specific Conditions shall prevail. In the event of any conflict between these Conditions, any Service Specific Conditions and the Order Form, the Order Form will prevail in relation to that Service.

2.6 Any quotation given by ARCL shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

2.7 The Customer warrants to ARCL that it is entering into the Contract for the purpose of its business, trade or profession and not as a consumer.

2.8 Except for Installation Services that shall form part of a Contract for the supply of Equipment, each order for Maintenance Services, Data Services or Fixed Network Services shall be deemed to be a separate Contract (irrespective of whether more than one or all of them are included on the same Order Form).

2.9 To the extent that there is any failure or delay by ARCL to supply one of the Services, that shall not entitle the Customer to terminate the Contract for the supply of any other Service or Services as the case may be (if any).

3. SUPPLY OF SERVICES

3.1 ARCL shall supply the Services to the Customer in accordance with the Contract in all material respects. In the event that the Order Form specifies:

  • (a) the supply by ARCL to the Customer of Equipment and Installation Services and/or Maintenance Services, clause 4 of these Conditions shall also apply to the Contract;
  • (b) the supply by ARCL to the Customer of Fixed Network Services, clause 5 of these Conditions shall also apply to the Contract;
  • (c) the supply by ARCL to the Customer of Data Services, clause 6 of these Conditions shall also apply to the Contract; and
  • (d) the supply by ARCL to the Customer of IT Support Services, clause 7 of these Conditions shall also apply to the Contract.

3.2 ARCL shall use all reasonable endeavours to deliver any Services on or by any date or dates specified in the Order Form, but any such dates shall be estimates or for guidance only and time shall not be of the essence for the performance of the Services.

3.3 ARCL shall have the right to make any changes to any Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the relevant Services. ARCL shall notify the Customer of any such change.

3.4 ARCL warrants to the Customer that the relevant Services will be provided using reasonable care and skill, subject to clauses 4, 5, 6 and 7 of these Conditions.

4.Terms applicable to Equipment, Installation Services and Maintenance Services

4.1 Any Order for Equipment is conditional on the availability of such Equipment prior to the Estimated Installation Date. ARCL shall use reasonable endeavours to deliver the Equipment and supply the Installation Services with reasonable care and skill in accordance with the estimated period for delivery and installation. Installation within such period is not guaranteed and time shall not be of the essence.

4.2 Delivery of Equipment shall be deemed to take place when the relevant Equipment arrives at the Customer’s Site (prior to unloading or unpacking) as specified in the Order (Delivery) (and Delivered shall be construed accordingly). In relation to Delivery of any Equipment:

  • (a) the Customer shall be responsible for checking that all details specified in the Order are correct;
  • (b) if the Customer fails to take Delivery of any Equipment within 10 Business Days of ARCL notifying the Customer that the Equipment is capable of being delivered, the Equipment shall be deemed to have been Delivered in accordance with the Contract and the Equipment shall be at the risk of the Customer and thereafter clause shall apply to the Equipment;
  • (c) if any Equipment is to be Delivered in instalments, any delay in the Delivery of one instalment shall not entitle the Customer to reject the other instalments or to terminate the Contract; and
  • (d) the risk in any Equipment shall pass to the Customer on Delivery (or deemed Delivery in accordance with clause 4.2(b)) and the Customer shall be responsible for insuring the Equipment from that time.

4.3 If the Customer is in breach of the Contract the Customer shall return the Equipment at the Customer’s cost to ARCL immediately on request and permit ARCL or its agents to enter any premises of the Customer or of any third party where the Equipment is located in order to recover it.

4.4 Subject to clause 2.2, supply of the Maintenance Services shall commence on the Commencement Date and shall continue for the Minimum Term and thereafter the Maintenance Services Contract shall automatically extend for three years (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. A party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or the relevant Extended Term, to terminate the Maintenance Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.

4.5 If for any reason clause 4.4 is deemed to be unreasonable and unenforceable by way of a final court judgment then this clause 4.5 shall apply. Subject to clause 2.2, supply of the Maintenance Services shall commence on the Commencement Date and shall continue for the Minimum Term and thereafter the Maintenance Services Contract shall automatically extend for 12 calendar months (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. A party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or the relevant Extended Term, to terminate the Maintenance Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.

4.6 The Maintenance Services shall only be supplied by ARCL in relation to the Equipment and to any other equipment agreed by ARCL in writing from time to time. Unless agreed otherwise in writing by ARCL shall supply the Maintenance Services in accordance with the Maintenance Service Levels (a copy of which is available at www.airacom.com) as amended from time to time.

4.7 The Maintenance Services shall not include or be deemed to include repair or maintenance to:

  • (a) equipment that is faulty or has failed due (in whole or in part) to or caused by:
    • (i) fair wear and tear;
    • (ii) the Customer’s (including its agents or workers) acts, operating errors, omissions or default;
    • (iii) failure in air-conditioning or fluctuations in electrical power;
    • (iv) any failure of equipment or software attached to or integrated to the Equipment where such equipment or software was not supplied by ARCL;
    • (v) vandalism, fire, theft, water or lightening;
    • (vi) any defect or error in software loaded on to the Equipment;
    • (vii) any defect or fault in connection with services supplied to ARCL by any Carrier;
    • (viii) failure by the Customer (including its agents or workers) to adequately maintain any Equipment or operate it in accordance with the manufacturer’s specifications, guidelines or recommendations; or
    • (ix) any attempt by the Customer or any third party other than ARCL or its duly authorised agents to repair, reconfigure, re-program or otherwise alter the Equipment or any equipment or cabling attached to it.
  • (b) ancillary items, including but not limited to, answer-phones, analogue and digital phones or devices, call loggers, pay-phones, computers, servers, uninterruptible power supplies, batteries, fax machines, public address systems, printers, cabinets, external music on hold sources, any cabling and/or consumables unless otherwise agreed in writing;
  • (c) the maintenance or repair of any extension wiring, any Equipment not at the Site, or of anything other than the Equipment; or
  • (d) the reprogramming of the Equipment to provide improved or modified services or facilities.

4.8 In the event that ARCL carries out Maintenance Services to any Equipment which has, in its reasonable opinion failed or become faulty due (wholly or partially) to any of the circumstances described in clause 4.7, ARCL shall be entitled to charge additional fees for such services calculated in accordance with clause 9.5.

4.9 In carrying out the Maintenance Services ARCL shall not (subject to clause 14) be liable for the loss of any data or information stored on the Equipment or any other equipment that may be affected by the carrying out of the Maintenance Services and the Customer shall ensure that appropriate backups of all data and information are maintained.

4.10 In rectifying any fault to Equipment it may be necessary for ARCL to reset the Equipment’s software. In such cases, ARCL shall not be responsible for resetting or reloading equipment programming and user profiles.

4.11 The Maintenance Services are limited to the provision and repair of the Equipment by ARCL on a like for like basis, which may include ARCL supplying reconditioned parts for Equipment and reconditioned Equipment. Any Equipment that is removed or replaced and any parts that are removed or installed in Equipment in the carrying out of the Maintenance Services shall become or shall remain (as the case may be) the property of ARCL.

4.12 Subject to clause 14, ARCL shall not be liable for any delay in the performance of the Maintenance Services where such delay is attributable to no

2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of ARCL which is not set out in the Order Form, the Service Specific Conditions or the terms (or incorporated by reference in any of them).

2.4 Any samples, drawings, descriptive matter or advertising issued by ARCL, and any descriptions or illustrations contained in ARCL’ catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the services described in them. They shall not form part of the Contract nor have any contractual force.

2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. In the event of any conflict between these Conditions and any Service Specific Conditions, the Service Specific Conditions shall prevail. In the event of any conflict between these Conditions, any Service Specific Conditions and the Order Form, the Order Form will prevail in relation to that Service.

2.6 Any quotation given by ARCL shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

2.7 The Customer warrants to ARCL that it is entering into the Contract for the purpose of its business, trade or profession and not as a consumer.

2.8 Except for Installation Services that shall form part of a Contract for the supply of Equipment, each order for Maintenance Services, Data Services or Fixed Network Services shall be deemed to be a separate Contract (irrespective of whether more than one or all of them are included on the same Order Form).

2.9 To the extent that there is any failure or delay by ARCL to supply one of the Services, that shall not entitle the Customer to terminate the Contract for the supply of any other Service or Services as the case may be (if any).

3. SUPPLY OF SERVICES

3.1 ARCL shall supply the Services to the Customer in accordance with the Contract in all material respects. In the event that the Order Form specifies:

  • (a) the supply by ARCL to the Customer of Equipment and Installation Services and/or Maintenance Services, clause 4 of these Conditions shall also apply to the Contract;
  • (b) the supply by ARCL to the Customer of Fixed Network Services, clause 5 of these Conditions shall also apply to the Contract;
  • (c) the supply by ARCL to the Customer of Data Services, clause 6 of these Conditions shall also apply to the Contract; and
  • (d) the supply by ARCL to the Customer of IT Support Services, clause 7 of these Conditions shall also apply to the Contract.

3.2 ARCL shall use all reasonable endeavours to deliver any Services on or by any date or dates specified in the Order Form, but any such dates shall be estimates or for guidance only and time shall not be of the essence for the performance of the Services.

3.3 ARCL shall have the right to make any changes to any Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the relevant Services. ARCL shall notify the Customer of any such change.

3.4 ARCL warrants to the Customer that the relevant Services will be provided using reasonable care and skill, subject to clauses 4, 5, 6 and 7 of these Conditions.

4.Terms applicable to Equipment, Installation Services and Maintenance Services

4.1 Any Order for Equipment is conditional on the availability of such Equipment prior to the Estimated Installation Date. ARCL shall use reasonable endeavours to deliver the Equipment and supply the Installation Services with reasonable care and skill in accordance with the estimated period for delivery and installation. Installation within such period is not guaranteed and time shall not be of the essence.

4.2 Delivery of Equipment shall be deemed to take place when the relevant Equipment arrives at the Customer’s Site (prior to unloading or unpacking) as specified in the Order (Delivery) (and Delivered shall be construed accordingly). In relation to Delivery of any Equipment:

  • (a) the Customer shall be responsible for checking that all details specified in the Order are correct;
  • (b) if the Customer fails to take Delivery of any Equipment within 10 Business Days of ARCL notifying the Customer that the Equipment is capable of being delivered, the Equipment shall be deemed to have been Delivered in accordance with the Contract and the Equipment shall be at the risk of the Customer and thereafter clause shall apply to the Equipment;
  • (c) if any Equipment is to be Delivered in instalments, any delay in the Delivery of one instalment shall not entitle the Customer to reject the other instalments or to terminate the Contract; and
  • (d) the risk in any Equipment shall pass to the Customer on Delivery (or deemed Delivery in accordance with clause 4.2(b)) and the Customer shall be responsible for insuring the Equipment from that time.

4.3 If the Customer is in breach of the Contract the Customer shall return the Equipment at the Customer’s cost to ARCL immediately on request and permit ARCL or its agents to enter any premises of the Customer or of any third party where the Equipment is located in order to recover it.

4.4 Subject to clause 2.2, supply of the Maintenance Services shall commence on the Commencement Date and shall continue for the Minimum Term and thereafter the Maintenance Services Contract shall automatically extend for three years (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. A party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or the relevant Extended Term, to terminate the Maintenance Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.

4.5 If for any reason clause 4.4 is deemed to be unreasonable and unenforceable by way of a final court judgment then this clause 4.5 shall apply. Subject to clause 2.2, supply of the Maintenance Services shall commence on the Commencement Date and shall continue for the Minimum Term and thereafter the Maintenance Services Contract shall automatically extend for 12 calendar months (Extended Term) at the end of the Minimum Term and at the end of each Extended Term. A party may give notice in writing to the other party no later than 90 days before the end of the Minimum Term or the relevant Extended Term, to terminate the Maintenance Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.

4.6 The Maintenance Services shall only be supplied by ARCL in relation to the Equipment and to any other equipment agreed by ARCL in writing from time to time. Unless agreed otherwise in writing by ARCL shall supply the Maintenance Services in accordance with the Maintenance Service Levels (a copy of which is available at www.airacom.com) as amended from time to time.

4.7 The Maintenance Services shall not include or be deemed to include repair or maintenance to:

  • (a) equipment that is faulty or has failed due (in whole or in part) to or caused by:
    • (i) fair wear and tear;
    • (ii) the Customer’s (including its agents or workers) acts, operating errors, omissions or default;
    • (iii) failure in air-conditioning or fluctuations in electrical power;
    • (iv) any failure of equipment or software attached to or integrated to the Equipment where such equipment or software was not supplied by ARCL;
    • (v) vandalism, fire, theft, water or lightening;
    • (vi) any defect or error in software loaded on to the Equipment;
    • (vii) any defect or fault in connection with services supplied to ARCL by any Carrier;
    • (viii) failure by the Customer (including its agents or workers) to adequately maintain any Equipment or operate it in accordance with the manufacturer’s specifications, guidelines or recommendations; or
    • (ix) any attempt by the Customer or any third party other than ARCL or its duly authorised agents to repair, reconfigure, re-program or otherwise alter the Equipment or any equipment or cabling attached to it.
  • (b) ancillary items, including but not limited to, answer-phones, analogue and digital phones or devices, call loggers, pay-phones, computers, servers, uninterruptible power supplies, batteries, fax machines, public address systems, printers, cabinets, external music on hold sources, any cabling and/or consumables unless otherwise agreed in writing;
  • (c) the maintenance or repair of any extension wiring, any Equipment not at the Site, or of anything other than the Equipment; or
  • (d) the reprogramming of the Equipment to provide improved or modified services or facilities.

4.8 In the event that ARCL carries out Maintenance Services to any Equipment which has, in its reasonable opinion failed or become faulty due (wholly or partially) to any of the circumstances described in clause 4.7, ARCL shall be entitled to charge additional fees for such services calculated in accordance with clause 9.5.

4.9 In carrying out the Maintenance Services ARCL shall not (subject to clause 14) be liable for the loss of any data or information stored on the Equipment or any other equipment that may be affected by the carrying out of the Maintenance Services and the Customer shall ensure that appropriate backups of all data and information are maintained.

4.10 In rectifying any fault to Equipment it may be necessary for ARCL to reset the Equipment’s software. In such cases, ARCL shall not be responsible for resetting or reloading equipment programming and user profiles.

4.11 The Maintenance Services are limited to the provision and repair of the Equipment by ARCL on a like for like basis, which may include ARCL supplying reconditioned parts for Equipment and reconditioned Equipment. Any Equipment that is removed or replaced and any parts that are removed or installed in Equipment in the carrying out of the Maintenance Services shall become or shall remain (as the case may be) the property of ARCL.

4.12 Subject to clause 14, ARCL shall not be liable for any delay in the performance of the Maintenance Services where such delay is attributable to no