For this statement to be false, both of the two following conditions must be met:
Before April 1st 2013, at least one BFL customer with a bitcointalk.org forum account established prior to the bet's opening date shall post detailed and credible photos of the device on the forum, including photos of it operating, and report its hashrate. This customer cannot be a BFL employee.
The device must achieve at least 75% of its advertised hashrate.
It seems to me that both of the conditions were met. Where in the conditions does it say anything about shipping?
Did you see the giant bolded text at the top of the page?
See that word "ship". Nothing shipped.
I see exactly what it says. The conditions say nothing about the title. See this part
"For this statement to be false, both of the two following conditions must be met:"
In a court of law this could go either way.