Except as provided in Section 3 above and clause (i) of this Section 12 , this Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them. Without limiting the foregoing, if, immediately prior to the execution of this Agreement by the Company and Indemnitee, Indemnitee and the Company were parties to a separate indemnification agreement (a “ Prior Agreement ”), this Agreement shall supersede and replace the Prior Agreement in its entirety. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties to this Agreement. The failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of any rights of such party.