Actually a TOS is only as good as the law of the land.
They still have to provide the service you paid for, namely software that works and runs. I would love to get away with selling people something that doesn't work but with a TOS that says I don't have to provide a working product. Sorry but it doesn't work that way. It is like me saying I claim immunity from local laws because I said so. Doesn't work that way.
The fact is if people paid for early access as part of the purchase they should get it, period. If they don't have access then they have the right to compensation in some form. Games developers aren't immune from selling something that doesn't work because they have a TOS.