The Nizkor Project: Remembering the Holocaust (Shoah)

Put up or shut up, Mr. Michael:
The Himmler Tape


[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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