Industry legal experts and agent advocates are asserting that Travelport's new Agility program violates its existing GDS contracts with agencies.
The Agility program bundles a host of the GDS's functions, some of which previously were free, others of which carried fees and new ones that Travelport says will increase agent revenue and efficiency as well as reduce costs.
Subscribers to Travelport's GDSs -- Apollo, Galileo and Worldspan -- learned last month that as of Jan. 1 they would be paying a monthly fee for the Agility program.
Travel lawyer and Travel Weekly Legal Briefs columnist Mark Pestronk recently wrote that under the standard Travelport contract, the GDS cannot legally do what it is attempting to do. In an email exchange last week, Pestronk added further rationale to his claim.
Travelport can assert that by bundling both waived features and new features into a single package with one price, it is not really charging anything for the waived features, Pestronk said. But, he argued, such an assertion would only be valid if the waived features were still available as of Jan. 1 without paying.
"Travelport's threat to discontinue access to the waived features shows that it is charging for the waived features, too," Pestronk said.
He said that according to the first sentence of Section II of the subscriber agreement, Travelport may offer "optional" software, products, features, services and content, "subject to Travelport's then-current fees, terms and conditions."
"I understand that this sentence forms Travelport's articulated legal basis for Agility," Pestronk said. "However, the implied features are not 'optional' by any stretch of the imagination."
He added that the Agility features not expressly waived in the subscriber agreement include queues.
"These functionalities are an integral part of the system and have always been provided by Travelport without charge to every Apollo agency," Pestronk said.
Further, he said, Travelport might argue that it has the right to charge for "enhanced" optional services that have previously been provided without such enhancements.
But, he said, "Travelport cannot begin charging for optional services previously provided, if there are no enhancements thereto. In the case of queues, for example, there has been no hint of enhancement, so charging for the Agility package that includes queues would not be allowed by the subscriber agreement."
Pestronk added that under Georgia law, which governs the subscriber agreement, every contract is subject to an implied "covenant of good faith and fair dealing."
"Under this covenant, a party must exercise its discretion reasonably and with a proper motive, and not arbitrarily, capriciously, or in a manner inconsistent with the other party's reasonable expectations," Pestronk said. He added that when agents signed the subscriber agreement, it was reasonable for them to have expected that the "implied features" would not be reclassified as content for which Travelport could charge.
Pestronk recommended that if an agency does not want the two truly new features of Agility -- its SmartPoint app and Rooms & More -- then the agency should inform Travelport that it will not pay for Agility, in which case the agency will expect the waived features to be available Jan. 1 or it will send a notice of a breach of contract.
During a webinar last month, ARTA Managing Director Bruce Bishins also argued that Travelport's standard agent contract might be in breach because of the new program.
Bishins said that the GDS has the right to charge for "optional services" but that many of the functionalities in Agility are core to GDS functionality and not optional.
"They are the essence of a GDS," Bishins said. "You can't option to not have schedule-change queues. Not to have profiles. Not to have an automated MCO."
Travel Weekly asked Travelport on several occasions to comment on assertions by Pestronk, Bishins and others that the Agility program violated its contracts with agencies. Travelport responded only that "as a matter of policy, we do not disclose the specific commercial terms of our customer agreements."
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