Mark Pestronk
Mark Pestronk

Q: I want to sue my agency's GDS vendor. Since 2006, we have been paying for so-called full content, which I understood to mean a commitment by the GDS vendor to include all the low airfares offered by the major airlines on their own websites. However, from time to time, our corporate and leisure clients bring us fare quotes that are lower than those in the GDS. At first, we thought that these were not apples-to-apples comparisons because the searches were an hour or so apart, and, as you know, fares can change minute-to-minute. However, after 13 years of full content, I am convinced that fares really are sometimes lower on the airlines' websites. Is it viable to sue for a refund of the 80-cent fees that I have been paying? What about the value of the clients that I have lost over the years because they found fares lower than we could?

A: The GDSs have protected themselves from claims related to supplier content or any other data in the GDS. So, you not only would fail to get a refund, but you would also fail to win compensation for lost clients.

The standard Sabre contract states, "The Sabre System, the Sabre Data, the System and/or any components thereof are provided to customer by Sabre as is and with all faults. Sabre disclaims all other warranties, express, implied or statutory. ..."

You could conceivably overcome this disclaimer if your contract contained an express promise that the system would provide all fares on all full-content participants. Sales reps' oral assurances and marketing materials would not count.

Further, assuming that you might still have a claim, the contract goes on to provide, "Sabre will not be liable to customer for any loss, claim or damage caused in whole or in part by the negligence (excluding gross negligence or willful misconduct) of Sabre or by events beyond the control of Sabre."

As if this weren't enough, Sabre further states, "Sabre will not be liable to customer under any theory of liability for ... lost profits, revenue or savings ... even if Sabre had been advised of, knew, or should have known of the possibility thereof."

So, you take the Sabre System "as is and with all faults," you agree that Sabre is not liable for losses caused by its negligence or by events beyond its control and you agree that Sabre is not liable for lost revenue.

Travelport and Amadeus have similar disclaimers, and Amadeus adds an even more pointed one, "Amadeus specifically disclaims any warranty that it will offer or maintain data from any particular supplier."

One more Amadeus clause is worthy of note: "In no event shall Amadeus' ... total aggregate liability ... exceed revenues received directly from customer under this agreement in the six months preceding the date of the first cause of action arising hereunder." So, if you didn't pay Amadeus anything, you can't get any damages.

In business-to-business contracts for services and software, courts generally uphold all these disclaimers, and I have never heard of a GDS disclaimer that a court refused to enforce.

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