I think that regardless of everything, we should sue them and see what happens. I receive a lot of questions via pm with persons interested to sue them, but everyone stops, due to laziness i think.
I would guess most people realize it would just be a waste of money. Even if in a year you win and are awarded damages, you'll probably still be further behind than if you just kept that money and invested it in another vendor or directly in BTC.
For what it's worth, as an August 9th customer I emailed them notifying them of their failure to deliver, and gave them 30 days with which to cure as per the terms of their original ToS.
Except for delivery dates explicitly guaranteed in the order confirmation, delivery dates communicated or acknowledged by Hashfast are approximate only, and Hashfast shall not be liable for, nor shall Hashfast be in breach of its obligations to Buyer because of any delivery made within a reasonable time before or after the stated delivery date
Buyer will give Hashfast written notice of failure to deliver and thirty (30) days within which to cure, unless the order confirmation explicitly guarantees a delivery date. In any case, Buyer’s sole and exclusive remedy after such cure period or guaranteed delivery date is to cancel the affected and undelivered portions of the order.
I received a phone call from their sales rep on August 12th confirming my order, and no mention of a December 31st date was made at that time, either. It was not until the revised ToS was sent out on August 15th that I received an email mentioning the new Dec 31st date.
Of course, they denied the refund and state "Unfortunately, we are not currently refunding orders. As we promised our Batch 1 Baby Jet customers, we will refund their order if we do not deliver the order by December 31, 2013. "
Not surprising, but disappointing nonetheless. A refund at this point is likely counterproductive, since a refund would likely return about 10BTC, and even a BabyJet shipped Dec 31 will mine more than that. I would have liked to have seen the option be available to pre-August 15th customers though, rather than their comment that I should try selling it on the Bitcoin forum. For all its faults, BFL did at least allow customers refunds and actually forced the early customers to waive their rights to a refund by explicitly agreeing to the delay and change in ToS.