yes, the agreement required the ERV to measure and take the data, not review data taken by Rossi.
Actually, it didn't. Allow me to explain how estoppel works. If the "test" that Penon described was the protocol followed, and if Darden approved that as the Guaranteed Performance Test, then Darden would likely be estopped from objecting later, once Rossi had committed and worked on the test, and Penon had issued his report.
Sure. It doesn't look like what would be done in a test to certify performance independently from Rossi! The contemplated GPT was to be at the IH facility in North Carolina, not in a warehouse in Florida under full Rossi control!
So: there are two obstacles Rossi faces:
1. Did Darden approve that document as a Guaranteed Performance Test procedure?
2. Did he approve it at all? Or did he merely not object until later?
3. Was there a specific approval of the start date of a Guaranteed Performance Test? The Second Amendment requires that such be signed by all parties. That would be someone signing for Industrial Heat, Ampenergo, Leonardo, and then Ross as himself. (There were two signatures missing on the Second Amendment. Rossi signed for himself but not for Leonardo. Nobody signed for Ampenergo, as far as we know (there could have been another copy signed by Ampenergo). This was all colossally sloppy of Rossi, and it looks like Annesser didn't notice the problems before filing, or he'd have alleged estoppel from the get-go.
Then there are issues about the test itself, the fake customer that then meant that customer "invoices" were meaningless, just more "Rossi says," the problem of heat dissipation, and a host of difficulties with the data Penon provided in the interim reports. (That was not the "ERV report," quoted in Exhibit 5, it was from the interim reports. IH did not have the final report at that time, they got it a few days later.)