Put up or shut up, Mr. Michael: [The typos in this document probably appeared during its creation.
This copy was taken from David Michael's UseNet post including it.
knm, 99/03/10]
AGREEMENT
1. The Nizkor Project (hereinafter "Nizkor"), an
unincorporated organization based in Canada and David
Michael (hereinafter "Michael") a citizen and resident of
the United Kingdom hereby agree to jointly have the
recording of the speech made by Heinrich Himmler before
officers gathered in the Polish city of Posen in October
1943 and entered into evidence at the trial before the IMT
of major war criminals at Nuremberg and currently held by
the U.S. National Archives analyzed by a recognized
laboratory specializing in voice print analysis to determine
whether the voice on said tape-recording is that of Heinrich
Himmler.
2. The analysis of the said tape recording shall
consist only of a voice print analysis of the tape recording
at issue. Any other analysis shall be done only at the
expense of the party wishing such further analysis.
3. The voice print analysis will be performed by
a recognized laboratory specializing in forensic voice print
analysis to which the parties to this contract mutually
agree, Nizkor shall propose which laboratory shall perform
the analysis subject to the approval of Michael. Rejection
of any proposed laboratory shall be only for good cause
shown including, inter alia, lack of competence, a poor
reputation within the profession of voice print analysis,
demonstrated bias, or conflict of interest. Should the
laboratory proposed be rejected for good cause, Michael will
then propose a laboratory located with the continental
United States, subject to the approval of Nizkor on the same
basis. This process will continue until a laboratory is
selected.
4. The voice print analysis shall be done
according to the standards of the laboratory chosen and the
scientific principles of voice print analysis who will then,
as experts in voice print analysis, make a report as to
their findings as to whether the tape recording is the voice
of Heinrich Himmler to a reasonable degree of scientific
certainty. Said report shall be considered in the public
domain.
5. The analysis shall compare the said tape
recording to a known speech given by Heinrich Himmler. The
selection of control specimen shall be determined by the
laboratory performing the analysis from the archive of
speeches and other public statements made by Heinrich
Himmler maintained by the U.S. National Archives Either
party has the right to reject any such alternate proposed
specimen for good cause which, for the purpose of this
agreement, consists only of a showing that the suggested
speech is not suitable for analysis or of clear and
convincing evidence that the speech was made by a person
other than Heinrich Himmler.
6. If the named laboratory is unable to perform a
complete analysis due to the length of the tape recording,
the minimum analysis shall consist of the portions of the
speech dealing with the Final Solution of the "Jewish
question" and two other portions selected at the discretion
of the laboratory performing such analysis.
7. Nizkor shall pay all fees required by the
laboratory.
8. Prior to actual payment of any such fees,
Michael will deposit a sum equal to those fees with an
attorney licensed to practice law in Pennsylvania to be
placed in an attorney's trust, escrow, or IOLTA account
pending the expert report of the laboratory. Nizkor agrees
to provide the names of three (3) such attorneys. Should
Michael insist that another attorney holds the funds as
described above, he shall bear the sole cost of any legal
fees which are incurred as a result of his decision.
9. Should the laboratory require additional fees,
Nizkor will advance said fees to the laboratory upon deposit
of a sum by Michael equal to those additional fees with the
named attorney to be placed in the attorney's trust,
escrow, or IOLTA account as aforesaid within thirty (30)
days of being notified by mail that such additional funds
will be required.
10. Should either party fail to make the
payments due either to the laboratory performing such
analysis or to a licenced attorney for deposit in a trust,
escrow, or IOLTA account, it will constitute a breach of
this agreement. As liquidated damages, as set forth below,
all sums already deposited in the said account shall be
returned to the non-breaching party and the breaching party
shall pay the sum of Ten Thousand ($10,000.00) U.S. Dollars
as liquidated damages.
11. Except in cases of breach of contract or as
otherwise provided herein the attorney shall release and
distribute the sums held in said account following and
pursuant to the expert report of the laboratory chosen.
Said distribution shall be made as follows:
a. If the expert report finds that voice print
analysis confirms that the voice on said tape recording is
that of Heinrich Himmler to a reasonable degree of
scientific certainty all funds held in such account shall be
released and distributed to Nizkor.
b. If the expert report finds that voice print
analysis confirms that the voice on said tape recording is
not that of Heinrich Himmler to a reasonable degree of
scientific certainty all funds held in such account shall be
released and distributed to Michael.
c. If the expert report finds that voice print
analysis is inconclusive in that it is unable to confirm or
deny to a reasonable degree of scientific certainty that the
voice on said tape recording is or is not that of Heinrich
Himmler Nizkor and Michael shall split the costs of the
analysis equally. To this end all funds held in such
account shall be released and distributed to equally to
Michael and Nizkor. Any rebate or refund from the
laboratory as a result of their failure to be able to
perform the analysis shall be divided in the same manner.
The parties agree that, in all cases, the decision
of the attorney holding said funds shall be final and no
liability shall accrue to said attorney by reason of his
acting in conformity with the report of the expert.
12. In case of the breach of this contract and
would be impossible or very difficult to ascertain
accurately, because the actual damages that either party
would sustain if the other party breaches its obligations
and duties under this agreement are uncertain the parties
agree in good faith that reasonable compensatory damage for
the harm done is is the party in breach of this contract
shall forfeit all claim to any funds on deposit with said
attorney, pay as liquidated damages the sum of Ten Thousand
($10,000.00) U.S. Dollars, and bear the incidental costs,
including, inter alia, reasonable attorney's fees of the
non-breaching party or the named attorney holding said
funds, and the reasonable costs and fees of arbitration
including costs of transcription..
13. Any dispute under this contract shall be
submitted to binding arbitration by the American Arbitration
Association, pursuant to their Commercial Arbitration Rules
or, at the option of the party bringing such action,
binding common law arbitration pursuant to the statutes,
rules and practices within the Commonwealth of
Pennsylvania. The loser of said arbitration shall bear any
costs of arbitration, including, inter alia, fees paid to
the arbitrators, incidental costs of the arbitration
including, inter alia, transcription fees, and the
reasonable attorney's fees of the non-breaching party.
Nizkor and Michael agree that any decision of this binding
arbitration may and shall be reduced to a judgment in a form
valid under the laws and jurisprudence of Canada, the United
Kingdom, and the Republic of South Africa. Notification of
the decision to initiate the arbitration process shall be by
mailing a notice of such intent to the other party or his
representative.
14. The parties agree that the validity and
construction of this agreement and of the rights and duties
of the parties shall be governed in accordance with the laws
of the Commonwealth of Pennsylvania and that the
jurisdiction for any such litigation not subject to binding
arbitration will be the U.S. District Courts which shall be
the sole jurisdiction for the resolution of any such
dispute. Nizkor and Michael agree that any decision of a
court of the designated jurisdiction, may and shall be
reduced to a judgment in a form valid under the laws and
jurisprudence of Canada, the United Kingdom, and the
Republic of South Africa.
15. For the purposes of this agreement notice to a
designated agent of a party shall constitute notice to a
party.
16. This agreement shall not be assigned by either
party without the written consent of the other party to the
proposed assignment. Each party shall designate one person
and/or firm to act as a designated agent.
17. This agreement is indivisible as to all of the
rights, duties, and obligations stated herein. Breach of
any duty or obligation constitutes a breach of the entire
agreement and give rise to a cause of action for termination
or breach of contract as set forth above. No partial
invalidity of this agreement shall effect the validity and
enforcibility of the remainder of the agreement.
18. This agreement constitutes the entire
agreement between the parties concerning the voice print
analysis of the speech made by Heinrich Himmler in Posen in
October, 1943, as preserved on tape at the U.S. National
Archives. This agreement supercedes any prior written or
oral agreements between the parties regarding the subject
matter of this agreement and contains all covenants and
agreements between the parties with regard to the voice
print analysis of the speech made by Heinrich Himmler in
Posen in October, 1943. Each party to this agreement
acknowledges that no representations, inducements, promises,
or agreements, oral or written, have been made by any party
or any person authorized to negotiate for any party, other
than those embodied in this agreement, and that no other
agreement, statement, or promise not embodied in this
agreement shall be binding or valid upon the parties to this
agreement.
--Yale F. Edeiken
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Nizkor
© The Nizkor Project, 1991-2012
This site is intended for educational purposes to teach about the Holocaust and
to combat hatred.
Any statements or excerpts found on this site are for educational purposes only.
As part of these educational purposes, Nizkor may
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provides them so that its readers can learn the nature and extent of hate and antisemitic discourse. Nizkor urges the readers of these pages to condemn racist
and hate speech in all of its forms and manifestations.
The Himmler Tape