that an indemnifying party after written notice from an indemnified party fails to take timely action to defend any such damage, loss, deficiency, liability, claimed encumbrance, penalty, cost, expense, action, suit, investigation, proceeding, demand, assessment, audit, judgment or claimed the indemnified party shall have the right to defend the same by counsel of its own choosing but at the cost and expense of the indemnifying party. In the event that the indemnified party defends such an asserted liability, it shall not compromise any such asserted liability without the written consent of the indemnifying party, such consent not to be unreasonably withheld or delayed. Section 9.4 FURTHER REMEDIES FOR INFRINGEMENT. If Licensee is prevented from its normal use of any Licensed Product or Documentation by injunction or court order arising from, relating to or in connection with any alleged or actual infringement on the intellectual property rights of a third party relating to any Licensed Product or Documentation, then Licensor at its option and in addition to the other remedies contained in this Agreement and at no expense, loss or damage to Licensee shall (a) replace such Licensed Product or Documentation free of any such infringement, (b) modify such Licensed Product or Documentation so that it is free of any such infringement or (c) procure for the benefit of Licensee, whether by license or other release of claim of infringement, the fight to make Sublicense Copies and copies of the Documentation to meet the demand of Redistributors and Customers and to market and sublicense Sublicense Copies and copies of the Documentation. ARTICLE 10 AGREEMENT NOT TO COMPETE, CONFIDENTIALITY Section 10.1 NONCOMPETITION. Each of Licensor and Licensee understands and acknowledges that Licensor shall be entitled to protect and preserve the going concern value of Licensor's business to the extent permitted by law