There's been a lot of persistent misinformation floating around about Kickstarter, and I don't really understand why. It's not complicated.
Yes, Kickstarter projects are legally obligated to fulfill their promised rewards, or else provide refunds. It has always been this way. Really, the only difference between Kickstarter and a preorder is that the schedule is a lot looser.
The KS Terms are a little more nuanced. The 'refund' stipulation, for example, only says that they must refund any 'remaining' money, not that they must provide a full refund. And there are several criteria that a project creator has to meet, in the absence of completion, to meet their obligations.
The effect is that KS can be used for projects that may fail. And quite right too, since that was its original aim (before it got saturated with companies using it as pre-sales / marketing / investment credentials / etc.
That is no longer the case in the current ToS. Among the current verbiage: "they offer to return any remaining [emphasis mine] funds to backers who have not received their reward (in proportion to the amounts pledged), or else explain how those funds will be used to complete the project in some alternate form."
As you say, the older ToS looked a lot like a pre-order which wasn't really the intention and didn't frankly make a lot of sense for a project that had some material probability of failing. After all, if the money is gone, it's not there any longer to issue refunds.
It made sense because it was the only thing holding Kickstarters accountable to the people funding them. With an investment, you're taking a risk but have some control over how the company's run. With a pre-order, you have no control but they have to deliver the product or refund you. Kickstarter now is the worst of both worlds: projects don't have to deliver anything and you can't even make sure they give it a decent try. Someone could promise the Earth, use the money to pay all their friends living costs for years while they tool around and fail to make a working product, then say "sorry, the money's all gone" and that's fine now according to Kickstarter.
Yes, but an ostensible requirement that the promised reward or a full refund had to be delivered no matter what simply never made any sense. You can't get blood from a stone and all. Now, like then, you could pursue legal action but this isn't a realistic option in most cases, at least outside of clear fraud. The current ToS does it pretty clear that not delivering a project or a full refund is a bad thing and also outlines other obligations. But, by not imposing requirements that are typically just not realistic to meet with most failed projects, to me it establishes a more useful baseline for behavior.
We already have a way of dealing with these kinds of debts that can't be repaid: it's called bankruptcy, it has a whole bunch of safeguards to stop people abusing it, and it's what you'd have to do if you took on any other kind of debt to fund your business and couldn't repay it. There is absolutely no reason why Kickstarter needs to be any different.
So now the Kickstarter project which has increased its costs by incorporating (though that's probably a good idea in any case) spends its remaining funds on bankruptcy lawyers and there's now nothing to return to the backers. Nothing is certain and Kickstarter projects certainly aren't. Whatever the ToS, it's probably not something you should use if you're looking for "satisfaction or your money back" sort of guarantees.
Yes, Kickstarter projects are legally obligated to fulfill their promised rewards, or else provide refunds. It has always been this way. Really, the only difference between Kickstarter and a preorder is that the schedule is a lot looser.