Does it really matter?  Even the very first TOS has limitation of liability and force majuer clauses.  The question is why a promise of BTC refunds irregardless of value any more reasonable then other idiotic promises like pirates promise of huge interest rates payable in BTC?
 
Ice is right that those who told people not to take or cash refund checks did a disservice to them.  Just say no to preorders and while at it say no to cloud mining.  The next ASIC scam.