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risk, prior experience, insurer, coverage, or other special circumstances. 11. INDEMNIFICATION (a) Interview Now will indemnify, defend and hold Licensee harmless from any third -party claim, action, suit or proceeding made or brought against Licensee alleging that Licensee's use of the Software in accordance with the Agreement infringes such third party's intellectual property rights (an "Infringement Claim"). In the event of an Infringement Claim, Interview Now may, at its sole option and expense: (1) procure for Licensee the right to continue use of the Software or the infringing part thereof; or (11) modify or amend the Software or infringing part thereof, or replace the Software or infringing part thereof with other software having substantially the same or better capabilities; or, (ill) if neither of the foregoing is commercially practicable, terminate the Agreement and repay to Licensee a pro-rata portion, if any, of any prepaid but unused Fees. Interview Now will have no liability for an Infringement Claim if the actual or alleged infringement results from (w) Licensee's breach of the Agreement, (x) Licensee's modification, alteration or addition made to the Software or any use thereof, including any combination of the Software with other materials not provided or authorized by Interview Now, (y) Licensee's failure to use any corrections or modifications made available by Interview Now that would not result in any material loss of functionality, or (z) use of the Software in a manner or in connection with a product or data not contemplated by this Agreement. Interview Now also disclaims any liability for settlements entered into by Licensee or costs incurred by Licensee in relation to an Infringement Claim that are not pre - approved by Interview Now in writing. (b) Licensee will Indemnify, defend and hold Interview Now harmless from (i) any third -party claim, action, suit or proceeding arising out of or resulting from Interview Now's use of any Licensee Data, as it was provided to Interview Now, in accordance with this Agreement; and (ii) any fines or penalties that may arise as a result of Licensee's breach of the export restrictions set forth in Section 12(c). (c) Each Party's indemnity obligations are subject to the following: (i) the indemnified Party will promptly notify the indemnifying Party In writing of the applicable claim; and (iii) the indemnified Party will reasonably cooperate to the extent necessary for the defense of such claim. (d) This provision, Section 11, Indemnification, shall survive the termination of this Agreement. 12.MISCELLANEOUS (a) Assignment. Neither Party may assign the Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of the other Party; provided, however, that either Party may assign the Agreement to a parent, affiliate, subsidiary, or successor to its business, if any, resulting from a merger, acquisition, or other change in control. Subject to the foregoing, the Agreement will inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. Any attempted assignment in violation of this Section 12(a) will be null and void.